BARR v. SANDERS (2006)

I.

Appellant Jack Barr (“Barr”) appeals from an August 12, 2005 judgment granting Respondent Jackson County's (“County”) motion to dismiss, and the court's granting a dismissal with prejudice to all defendants for failure to state a claim.   Barr has acted pro se in this suit against the County, the elected Jackson County Prosecutor, and the Office of the Jackson County Prosecutor, which he filed on July 22, 2004.   The underlying facts supporting Barr's petition are somewhat vague.   Barr alleged that the Jackson County Prosecutor wrongfully declined to file criminal charges in a robbery and the rape of his daughter that allegedly occurred at Barr's home in August 2002.   Barr contends that the actions of the Prosecutor and individual defendants on his staff violated his constitutional rights and constitute sufficient grounds to compel a forfeiture of the office of Prosecutor.

The procedural history of this case is confusing at best.¹  On October 25, 2004, the trial court entered a judgment and order granting County's motion to dismiss and dismissed Barr's petition as to all defendants.   Barr filed a motion to vacate and set aside the trial court's judgment and order, which the trial court denied.   Barr then filed a series of motions, including a request for sanctions and enlargement of time, but on December 7, 2004, the trial court dismissed all of Barr's motions as moot and declared the case closed for all purposes other than appeal.   Barr promptly appealed to this court.   On April 6, 2005, this court dismissed Barr's appeal for lack of jurisdiction because no final, appealable judgment had been entered as the petition was not dismissed with prejudice.

On August 12, 2005, nearly ten months after the trial court had dismissed Barr's petition as to all defendants (October 25, 2004), the trial court sua sponte amended the October 2004 judgment to a judgment dismissing the cause with prejudice.   There had been no activity in this case since the April 2005 mandate from this court dismissing Barr's appeal.   Barr then filed requests to vacate, reopen, and a motion for “Relief from Judgment and Orders.”   The trial court denied Barr's motions on October 12, 2005, and Barr appealed to this court.

Barr's first brief was stricken because of numerous Rule 84.04 violations.   His amended brief, now under review, is even more difficult to understand.   This court has attempted to decipher the points.

II.

Under Rule 75.01, a trial court retains control over a judgment for thirty days after the judgment was entered.   After giving the parties an opportunity to be heard, and for good cause, the trial court may vacate, reopen, correct, amend or modify its judgment during that thirty-day period.  Rule 75.01.   Once this thirty-day period expires, the judgment becomes final, and the trial court is without jurisdiction to amend it.  Schobert v. Pelfresne, 91 S.W.3d 692, 694 (Mo.App.2002).   Rules 78.06 and 81.05 provide for an extension of the trial court's control over a judgment, from thirty days to ninety days, after a timely authorized after-trial motion is filed.  Puisis v. Puisis, 90 S.W.3d 169, 172 (Mo.App.2002).   The trial court retains the same degree of control over the judgment during this ninety-day period as that provided in Rule 75.01.  Id.

 In the case at bar, the trial court was without jurisdiction to amend the October 2004 judgment from a judgment without prejudice to a judgment with prejudice.   The trial court did not denominate the judgment on October 25, 2004, as being with prejudice, but the trial court sua sponte amended this judgment to be with prejudice on August 12, 2005-nearly ten months later.  Rule 67.01 states, “A dismissal without prejudice permits the party to bring another civil action for the same cause[.]”  Unless designated otherwise, a judgment is without prejudice, and a judgment without prejudice is not a final judgment and, therefore, not appealable.   Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997).  “Stated another way, a dismissal without prejudice that a plaintiff may cure by filing another suit in the same court is not a final judgment from which an appeal may be taken.”  Id. at 4, (citing Turnbow v. Southern Ry. Co., 768 S.W.2d 556, 558 (Mo. banc 1989)).   Therefore, the court's October 2004 judgment merely permitted Barr to refile a petition, not to relitigate the petition that had been dismissed.²  Mahoney v. Doerhoff Surgical Servs., 807 S.W.2d 503, 506 (Mo. banc 1991).

The trial court was likely trying to assist Barr in his attempt to litigate this matter pro se by amending its judgment in order to facilitate an appeal to this court.   However, the mandate of Rule 75.01 is clear.   Accordingly, this court has no choice but to reverse the trial court's judgment of August 12, 2005.   The trial court was without jurisdiction to take any action on the Barr petition following the dismissal without prejudice of October 25, 2004.   The judgment of August 12, 2005, is reversed.

Appendix

FOOTNOTES

1.   Given the confounding, circuitous procedural history of this case and the tenuous nexus between much of that history and the instant decision, this court has attached a chronology of events as Appendix 1. This chronology illustrates the challenges trial courts sometimes face when administrating pro se litigation.   In the main opinion, this court discusses only the procedural steps directly implicated by this appeal, for the sake of clarity.

2.   This court notes, without deciding, that Barr may face potential res judicata issues in any attempt to refile this petition.  “While a dismissal without prejudice for failure to state a claim may operate to preclude the plaintiff from bringing another action for the same cause and may be res judicata of what the judgment actually decided, the dismissal does not preclude the plaintiff from reasserting the claim on new factual allegations.”  Elrod v. Stewart, 163 S.W.3d 587, 591 (Mo.App.2005).

HAROLD L. LOWENSTEIN, Judge.

All concur.