WEA Crestwood Plaza v. Flamers Charburgers Inc.

• Decision Date: 11 January 2000
• Citation: 24 S.W.3d 1
• Parties: (Mo.App. E.D. 2000) WEA Crestwood Plaza, L.L.C., Appellant, v. Flamers Charburgers, Inc., Respondent. Case Number: ED76311 Missouri Court of Appeals Eastern District Handdown Date: 0
• Court: Missouri Court of Appeals

24 S.W.3d 1 (Mo.App. E.D. 2000)

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court

WEA Crestwood Plaza, L.L.C., Appellant, v. Flamers Charburgers, Inc., Respondent.

Case Number: ED76311

Missouri Court of Appeals Eastern District

Handdown Date: 01/11/2000

Appeal From: Circuit Court of St. Louis County, Hon. Brenda Stith Loftin

Counsel for Appellant: Clyde C. Farris, Jr., and Stephen C. Hiotis

Counsel for Respondent: Jason E. Maschmann

Opinion Summary: Landlord in a commercial lease obtained judgment against Tenant in a rent and possession action (the "First Suit"), then brought a subsequent action against Tenant for breach of contract on the same lease ("the Second Suit"), seeking rent that had accrued after the prior judgment. Landlord now appeals from the trial court's judgment dismissing the Second Suit. The court held that the First Suit effectively terminated the lease and extinguished any remaining obligations thereunder on the part of Tenant, and further held that the Second Suit was barred by the doctrine of res judicata.

REVERSED AND REMANDED.

Division Three holds: (1) Nothing in Chapter 535 provides that a rent and possession judgment operates to automatically terminate a lease or the parties' remaining obligations under the lease; nothing in the record supports Tenant's claim that by its actions in the First Suit Landlord elected to terminate the lease; and Tenant expressly agreed under the terms of the lease that in the event of default it would remain liable for any additional rents or damages that might accrue after Landlord regained possession through legal proceedings. (2) The doctrine of res judicata does not bar the Second Suit. Under Missouri law a party may bring successive claims on the same contract for damages that had not yet accrued at the time of the prior judgment, and such a subsequent lawsuit constitutes a new and separate cause of action.

Opinion Author: Richard B. Teitelman, Presiding Judge

Opinion Vote: REVERSED AND REMANDED. Ahrens and Mooney, JJ., concur.

Opinion:

Appellant WEA Crestwood Plaza, L.L.C. commenced an action against Respondent Flamers Charburgers, Inc. for breach of contract, seeking rental charges under a commercial lease between the parties involving demised premises located in St. Louis County. Appellant now appeals from a judgment granting Respondent's Motion to Dismiss. We reverse and remand.

BACKGROUND

Plaintiff-Appellant WEA Crestwood Plaza ("Landlord") entered into a ten (10) year lease of commercial property dated November 6, 1990, with Defendant-Respondent Flamers Charburgers, Inc. ("Tenant"). The minimum rent specified in the lease was $3,125.00 per month, plus additional rental charges for common area maintenance, real estate taxes, marketing fund and sewer.

Section 20.01 of the lease provided, in pertinent part, that if Tenant were to default on the lease, Landlord would have, in addition to any other rights or remedies provided by law or equity:

the immediate right to (i) terminate this lease (in which case the term of this lease shall automatically terminate on the giving of such notice) or (ii) terminate Tenant's right to possession of the Leased Premises without termination of this lease. Notwithstanding any termination of Tenant's right to possession of the Leased Premises without termination of this lease, [Landlord] may at any time after such termination of possession elect to terminate this lease for such previous breach by giving notice thereof to Tenant. (emphasis in original)

In December of 1998, after Tenant's subtenant fell behind in the rent, Landlord filed a rent and possession action pursuant to Chapter 535 et seq. RSMo¹, against Tenant and the subtenant seeking to recover all back rent due under the lease as well as possession of the premises (the "First Suit").

On January 21, 1999, the parties negotiated and agreed to, and the trial court entered, a Confession of Judgment in favor of Landlord and against Tenant and the subtenant in the First Suit. In the Confession of Judgment, Tenant and the subtenant confessed to entry of judgment on Landlord's petition for all amounts due through the date of judgment, and entry of judgment in the amount of $17,025.00 along with immediate restitution of the premises. Landlord received the entire sum of money agreed to in the judgment on that date, along with immediate possession of the premises.

On February 26, 1999, Landlord again filed suit (the "Second Suit") in St. Louis County Circuit Court against Tenant, alleging that Tenant breached the lease by failing to pay minimum rent and additional rent charges due through February 26, 1999 in the total amount of $5,753.14. The petition also sought interest and Landlord's attorney's fees as permitted in the lease. Landlord prayed for judgment against Tenant for $5,753.14, plus all rental charges due at the time of judgment with interest and attorney's fees. There is no dispute that the First Suit and Second Suit involve the same Lease between Landlord and Tenant, dated November 6, 1990.

Tenant filed a motion to dismiss, asserting in substance: (1) that the petition in the Second Suit failed to state a claim upon which relief can be granted because under Missouri law the judgment in the prior rent and possession action (First Suit) terminated the lease and discharged the parties' remaining obligations thereunder; and (2) that the Second Suit was barred by the doctrine of res judicata. The motion also asked the trial court to take judicial notice of the First Suit.

On May 27, 1999, the trial court entered an Order and Judgment sustaining Tenant's motion to dismiss the Second Suit. Landlord now appeals that judgment.

DISCUSSION

In separate points relied on, Landlord argues on appeal that the trial court erred in dismissing the Second Suit on either of the two grounds asserted in Tenant's motion to dismiss.

When, as here, the trial court fails to specify its reasons for dismissing the petition, we presume the court acted for one or more of the grounds asserted in the motion to dismiss. Bachman v. Bachman, 997 S.W.2d 23, 26 (Mo. App. E.D. 1999); Terre Du Lac Assn. v. Terre Du Lac, Inc., 737 S.W.2d 206, 211 (Mo. App. E.D. 1987). We will affirm the order of dismissal if any grounds asserted for dismissal are valid. Terre Du Lac, 737 S.W.2d at 211.

I. Jurisdiction

In the case at bar the trial court dismissed Landlord's petition without specifying whether the dismissal was with prejudice. We therefore must first determine our jurisdiction, sua sponte. Shores v. Express Lending Services, Inc., 998 S.W.2d 122, 125 (Mo. App. E.D. 1999). Although normally under Rule 67.03 an involuntary dismissal is deemed to be without prejudice unless the court specifies otherwise in its order of dismissal, a party can appeal from a dismissal without prejudice if the dismissal has the practical effect of terminating the action in the form cast. Id. A dismissal "without prejudice" for failure to state a claim effectively bars a plaintiff from refiling the action in its original form. Bachman v. Bachman, 997 S.W.2d at 25. Here, based on either of the two theories asserted in Tenant's motion to dismiss, both of which contend that Landlord has failed to state a claim upon which relief can be granted, the dismissal would have the practical effect of terminating Landlord's action. We therefore have jurisdiction to hear this appeal.

II. Standard of Review: Motion to Dismiss/Summary Judgment

Although titled a "Motion To Dismiss," Tenant attached to its motion the Confession of Judgment in the First Suit. The motion also asked the court to take judicial notice of the pleadings and case file in the First Suit.² A determination as to the legal validity of the grounds asserted in Tenant's motion to dismiss necessarily depends on proof of the prior judgment. Res judicata is an affirmative defense that is not self-proving; evidence to support the defense must be adduced. Rock House Farm, Inc. v. Ridgeway Lion's Club, 894 S.W.2d 262, 265 (Mo. App. W.D. 1995); Ackley v. Ackley, 257 S.W.2d 404, 407 (Mo. App. Springfield 1953).

Under Rule 55.27(a), when the judgment and pleadings from another case are presented to and not excluded by the court, a motion to dismiss on res judicata or related grounds should be treated as one for summary judgment. Shores v. Express Lending Services, Inc., 998 S.W.2d at 125-126 (citing King General Contractors, Inc. v. Reorganized Church, 821 S.W.2d 495, 499 (Mo. banc 1991)). Generally, before a trial court may treat a motion to dismiss as one for summary judgment under this rule, it must first notify the parties that it is going to do so, and give the parties an opportunity to present all materials pertinent to a motion for summary judgment. Shores v. Express Lending Services, Inc., 998 S.W.2d at 126. The record here fails to indicate that the trial court gave the parties such notice. In cases such as this one, however, where the asserted basis for the motion was res judicata and related arguments, the relevant material from the underlying case was before the trial court, an evidentiary hearing was held, and the parties have not suggested any other documents were necessary to decide the question, it is appropriate for us to treat the judgment as a summary judgment. Id. See also Chaney v. Cooper, 954 S.W.2d 510, 515 (Mo. App. W.D. 1997).

In reviewing whether a grant of summary judgment was proper, we must view the record in the light most favorable to the party against whom the summary judgment was entered. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). That party is accorded the benefit of all reasonable inferences that may be drawn from the record. Id. Because the granting or denial of a motion for summary judgment is purely an issue of law, and because the trial court's decision is founded on the same record that we are to...