Court of Appeals of Missouri, Western District, First Division
CREST CONSTRUCTION II, INC. and METRO ENERGY, INC., Appellants,
JOHN D. HART, et al., Respondents
Appeal from the Circuit Court of Clay County, Missouri. The Honorable Anthony Rex Gabbert, Judge.
For Appellants: Dennis Owens, Kansas City, MO.
For Larry Myers, Connie Myers, and Bud Taylor, Respondents: F.A. White, Kansas City, MO.
For Hilda Marie Chaddock, Respondent: David H. Johnson, Kansas City, MO.
Karen King Mitchell, Judge. Mark D. Pfeiffer, Presiding Judge, and Lisa White Hardwick, Judge, concur.
Karen King Mitchell,
Crest Construction II, Inc. and Metro Energy, Inc. (collectively " Crest Construction" ), both owned by Randall Robb, appeal from the circuit court's dismissal with prejudice of their petition for breach of contract, fraud, conversion, and civil conspiracy. Crest Construction raises two points on appeal. First, Crest Construction contends that the circuit court erred when it dismissed its lawsuit based on the
statute of limitations because the statute of limitations was tolled while the claims were litigated in federal court in that Crest Construction's state claims arise out of the same transactions and occurrences, they were pleaded with the same wording with the addition of more particular factual recitations, and they are the same causes of action that were filed in federal court. Second, Crest Construction contends that the trial court erred when it dismissed its lawsuit based on the statute of frauds in that Crest Construction completely performed its portion of the oral contract by paying more than $1,600,000 to the Defendants pursuant to their agreement and, thus, the oral contract falls within an exception to the statute of frauds. Because we find that the trial court has not issued a final judgment in this case, we dismiss Crest Construction's appeal.
Factual and Procedural Background
This case arises out of an alleged business relationship between Randall Robb and his companies, Crest Construction II, Inc. and Metro Energy, Inc. (Plaintiffs), and John D. Hart, Dee Hart, On Time Auto Sales & Financing LLC, Fidelity Three, Inc., Northland Auto Brokers, LLC, Larry Myers, Connie Myers, Northland II, Inc., Northland Auto Sales & Leasing LLC, Northland Auto Sales LLC, Buddy Taylor, and Hilda Marie Chaddock (Defendants).
On October 4, 2007, Crest Construction filed a six-count complaint in the United States District Court for the Western District of Missouri. The counts were Count I (Breach of Contract), Count II (Breach of Contract), Count III (Fraud), Count IV (Conversion), Count V (Civil Conspiracy), and Count VI (RICO). All conduct allegedly committed by any defendants occurred from December 2003 through December 2004.
On August 27, 2010, the district court dismissed Count VI (RICO), which had provided the basis for federal jurisdiction. The district court declined to exercise supplemental jurisdiction under 28 U.S.C. § 1367(c)(3) over the remaining claims, finding that the case was " a garden variety fraud and breach of contract case that should be heard in Missouri state court." The court dismissed all of Crest Construction's claims without prejudice. On November 4, 2010, the district court denied Crest Construction's motion to set aside the court's judgment and allow it to amend the complaint. On appeal to the Eighth Circuit Court of Appeals, Crest ...