Court of Appeals of Missouri, Western District, Second Division
from the Circuit Court of Jackson County, Missouri The
Honorable Robert Michael Schieber, Judge
Before: James Edward Welsh, Presiding Judge, Senior Judge
Alok Ahuja, Judge, Anthony Rex Gabbert, Judge
Anthony Rex Gabbert, Judge.
Brooks Lilly, et al. (the Lillys) appeal the circuit
court's judgment dismissing on abatement grounds a suit
the Lillys brought against Polsinelli, PC, et al. (Owen and
Polsinelli), which the Lillys concede to be identical to a
suit already pending before the same court. The Lillys
contend on appeal that the court erred in dismissing the
second suit on abatement grounds because both suits were
pending before the same judge in the same court, there was a
legitimate justification for filing the second case, and an
exception to the abatement doctrine applies. Owen and
Polsinelli contend that we have no jurisdiction to reach the
merits of the Lillys' claims, as the Lillys' second
case was dismissed without prejudice. We agree with Owen and
Polsinelli and dismiss this appeal for lack of jurisdiction.
Judgment from which the Lillys appeal shows that the
Lillys' second suit was dismissed without prejudice on
abatement grounds. "The general rule is that a dismissal
without prejudice is not a final judgment and, therefore, is
not appealable." City of Kansas City v. Ross,
508 S.W.3d 189, 192 (Mo. App. 2017) (internal citation and
quotation marks omitted). "Nonetheless, an appeal from a
dismissal without prejudice can be taken where the dismissal
has the practical effect of terminating the litigation in the
form cast or in the plaintiff's chosen forum."
Avery Contracting, LLC v. Niehaus, 492 S.W.3d 159,
162 (Mo. banc 2016) (internal quotation marks and citation
Lillys make no contention that the dismissal had the
practical effect of terminating the litigation; the
Lillys' initial suit is still pending. The Lillys'
only claim with regard to Owen and Polsinelli's
jurisdictional challenges is that this court has reviewed
other cases wherein the trial court's dismissal was based
on abatement. Yet, the Lillys fail to explain how any of the
cases cited by the Lillys compel review of their
case. As noted, there are exceptions to the
general rule of non-review, but the Lillys do not argue the
existence of an exception.
dissent, however, argues an exception for the Lillys. It is
improper for us to speculate on facts and arguments that were
not made by the parties. City of Lee's Summit v.
Cook, 337 S.W.3d 757, 758 (Mo. App. 2011). "Our
role as a neutral reviewing court forbids us from acting as
an advocate." Mansfield v. Horner, 443 S.W.3d
627, 658 (Mo. App. 2014). Although we believe that the
dissent's claims should not be entertained,
find them meritless nonetheless.
Lillys first filed their action against Owen and Polsinelli
in the Johnson County District Court of Kansas
("Polsinelli Kansas"). The Lillys then
filed the same action in the Jackson County Circuit Court of
Missouri ("Polsinelli Missouri I"). Over
Owen and Polsinelli's objection, the Lillys moved to
dismiss Polsinelli Kansas and it was dismissed
without prejudice. Owen's pending counterclaim was
unaffected by the dismissal. The Lillys then filed a
duplicate action in the Jackson County Circuit Court
(Polsinelli Missouri II). On Owen and
Polsinelli's motion, the circuit court dismissed
Polsinelli Missouri II, without prejudice, on
dissent argues that the Lillys' appeal of that dismissal
is reviewable because the Lillys cannot cure the dismissal by
filing another suit, as it would again be dismissed on
abatement grounds, and because the dismissal has the
practical effect of terminating the litigation "in the
form cast" by the Lillys. We disagree.
for a case to be dismissed on abatement grounds, the same
cause of action must, at the very least, pend simultaneously
in separately filed cases. U.S. Bank, N.A. v.
Coverdell, 483 S.W.3d 390, 401 (Mo. App. 2015). Here,
Polsinelli Missouri I will at some point be
resolved. When it is, the Lillys may refile Polsinelli
Missouri II. Although Polsinelli Missouri II
may then be subject to dismissal on other grounds, such as
res judicata or a time limitation, abatement will not be
grounds for dismissal.
we disagree with the dissent's contention that
Polsinelli Missouri II's filing date is part of
"the form cast." The law cited by the dissent does
not support such a broad interpretation of "the form
cast"; it merely states that, where a petition is
dismissed for failing to state a claim and the plaintiff
chooses not to plead further, then a dismissal without
prejudice is appealable because the form of the petition
itself was found deficient. McGaw v. McGaw, 468
S.W.3d 435, 439 n.5 (Mo. App. 2015). Obviously, a claimant
cannot refile that same petition without it again being
dismissed on the same grounds. Here, the form in which
Polsinelli Missouri II is cast is the exact same
form in which Polsinelli Missouri I is cast. The
contents of the petitions are identical and Polsinelli
Missouri I remains pending. Polsinelli Missouri
II's dismissal does not deprive the Lillys of
proceeding on their claims in "the form cast."
dissent inflates "the form" of the petition to
include filing dates as an equitable remedy to prevent the
Lillys' claims from being time-barred. Yet, statutes of
limitation are procedural in nature. Ferdinand v.
State, 480 S.W.3d 330, 333 (Mo. App. 2016). They may be
relevant and applicable, but they are external to the
"form" of a case; they are peripheral to the
substantive elements of a particular legal claim which form
the basis of a sustainable petition that, if cast properly,
will avoid defeat for failure to state a claim. Here, if the
Lillys' claims are time-barred, the dismissal of
Polsinelli Missouri II is not the root cause; the
root cause emanates from purposeful and strategic choices
made by the Lillys.
Kansas law cited by the dissent that potentially time-bars
Polsinelli Missouri I dates to 2006. Smith v.
Graham, 282 Kan. 651, 664, 147 P.3d 859, 868 (2006).
Polsinelli Missouri I was filed in 2015. We must
presume the Lillys were fully aware of the potential
ramifications of filing Polsinelli Missouri I at the
time they chose to file. Missouri Highway and Transp.
Com'n v. Myers, 785 S.W.2d 70, 75 (Mo. banc 1990)
("Persons are conclusively presumed to know the
law.") We must also presume that the Lillys were fully
aware that, when duplicate cases are filed, the law allows
for dismissal of the later-filed case. Rule 55.27(a)(9) and
Section 509.290(8), RSMo 2000.
Missouri was the Lillys' forum of choice, it was their
obligation to properly secure that forum. They concede that
they may have failed to do so. Nonetheless, contrary to the
dissent's assertion, Polsinelli Missouri II was
not the only means the Lillys had "to ensure that they
preserved every possible response to the statute of
limitations defense which Owen and Polsinelli have
asserted." Significantly, the Lillys could have
refiled their claims in Kansas. As the abatement doctrine
does not apply to cases pending concurrently by the same
parties in the courts of different states,  refiling in
Kansas would have accomplished the Lillys' stated
objective without risk of dismissal. They chose not to
addressing the dissent's position on the merits of the
Lillys' appeal, we note that the law is clear that the
pendency of a prior action is "only grounds to
stay or abate the later action."
Sherman v. Missouri Professionals Mut.-Physicians
Prof'l Indem. Ass'n, 516 S.W.3d 867, 869-70 (Mo.
App. 2017). The Lillys never asked that Polsinelli
Missouri II be stayed; they only requested consolidation
of the cases. In now advocating that Polsinelli Missouri
II should have been stayed, the dissent requests a
remedy that was not before the trial court. "Appellate
courts are merely courts of review for trial errors, and
there can be no review of a matter which has not been
presented to or expressly decided by the trial court."
Barkley v. McKeever Enterprises, Inc., 456 S.W.3d
829, 839 (Mo. banc 2015) (internal citation and quotation
marks omitted). To find that the court should have
consolidated the cases in lieu of abatement, we would
necessarily have to conclude that the court erred in applying
established precedent. We cannot.
dissent argues that Owen and Polsinelli will suffer no
prejudice if Polsinelli Missouri II is left pending.
We disagree. We find inherent prejudice where a party has
spent time and resources successfully defending a claim only
to have a "neutral arbiter" mitigate the
consequences of choices made by an opponent such that the
time and resources expended were all for naught. Further, we
cannot ignore that the Lillys had the option to refile in
Kansas and chose not to refile. When Polsinelli
Kansas was dismissed, it was dismissed without
prejudice, pursuant to the condition that, "upon
refiling the matter will commence where it last
finished" and "if Plaintiffs refile in Johnson
County District Court, the Court reserve(s) the right to
award attorney fees in the event that there is a duplication
of process or duplication of any work in any Court in either
Kansas or Missouri[.]" Under the Kansas court's
dismissal order, Owen and Polsinelli might have been entitled
to attorney fees had the Lillys refiled there. Owen's
counterclaim in Polsinelli Kansas remains pending
and is set for jury trial January 18, 2019. On the record
before us, we cannot agree that Owen and Polsinelli will
suffer no prejudice if forced to litigate Polsinelli
Missouri II under the Lillys' chosen terms.
no jurisdiction to review the Lillys' claims, we dismiss
Presiding Judge, joins in the majority opinion