                         Missouri Court of Appeals
                                   Southern District
                                       Division One


MICHAEL SHEFFIELD,                            )
                                              )
       Plaintiff-Appellant,                   )
                                              )
vs.                                           )       No. SD35952
                                              )
GREG MATLOCK, HUSCH                           )       FILED: November 13, 2019
BLACKWELL LP, CORY L. COLLINS,                )
and SHELLY ROSENFELDER,                       )
                                              )
       Defendants-Respondents.                )

           APPEAL FROM THE CIRCUIT COURT OF GREENE COUNTY

                        Honorable Michael O’Brien Hendrickson

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

       Michael Sheffield (“Appellant”) appeals the trial court’s judgment dismissing his

claims against Greg Matlock, Husch Blackwell, L.P. (“Husch”), Cory Collins, and Shelly

Rosenfelder (all four collectively “Respondents” and Husch, Collins, and Rosenfelder

sometimes collectively “Respondent Attorneys”). Appellant argues: (1) the trial court

erred in dismissing his claims against Respondents based on claim preclusion because

Respondents were not parties to Greene County Circuit Court case number 1531-

AC05819-01 (“Prior Case”); (2) the trial court erred in declaring that the withdrawal of

his “[Rule] 52.11 Motion” in Prior Case was ineffective; (3) the trial court erred in




                                             1
dismissing his claims against Respondents for lack of standing and failure to state a

claim; (4) the trial court erred when it ruled Respondent Attorneys were immune from

claims that they assisted Matlock in violating the Foreclosure Consulting Act (“FCA”) 1;

and (5) the trial court erred in denying Appellant leave to amend because it “allow[s]

criminals to evade justice.” Finding no merit in Appellant’s fourth and fifth points

against Respondent Attorneys and that the resolution of those two points is dispositive of

this appeal as to them, we affirm the trial court’s judgment dismissing Appellant’s claim

in count two of his petition against Respondent Attorneys. Because Appellant has

standing under section 407.943 to bring his FCA violation claim against Matlock as

alleged in count one of his petition and Matlock’s res judicata (claim preclusion)

affirmative defense asserted in his motion to dismiss is not established by the record on

appeal, we reverse the trial court’s judgment as to Appellant’s count one claim against

Matlock and remand the case back to the trial court for further proceedings.

              Allegations in Appellant’s Petition and Procedural Background

          Appellant’s petition alleges the following. In 2013, Appellant hired Alec and

Lauren Financial Investments, LLC (“A & L”), a Missouri limited liability company, to

assist him in halting the foreclosure of his home. Matlock is A & L’s managing member.

A & L, acting through Matlock, agreed to assist Appellant by purchasing the home from

Appellant for $2,066.97 and selling it back to him for $9,857.04, plus interest. A & L

hired Respondent Attorneys to draft the documents for the transaction. A & L,

represented by Respondent Attorneys, later filed Prior Case for rent and possession,

seeking to evict Appellant from the home for failing to pay the amount owed to A & L.



1
    See sections 407.935-.943. All statutory references are to RSMo Cum.Supp. 2014.


                                                    2
In that case, Appellant counterclaimed against A & L for violating the FCA and obtained

a judgment against A & L on that claim.

       Thereafter, Appellant filed this case against Respondents, alleging “Unlawful

Foreclosure Consulting” by Matlock (Count 1) and “Accessory Liability” against

Respondent Attorneys (Count 2). The first count of Appellant’s Petition against Matlock

alleges, among other matters:

       Greg Matlock, in the course [sic] scope of his agency for [A & L],
       represented that he could stop the foreclosure on [Appellant’s] home, if
       [Appellant] borrowed 2066.97 from [A & L]. . . .

       ....

       Greg Matlock, in the course and scope of his agency for [A & L],
       performed foreclosure consulting services as defined by the Missouri
       Foreclosure Consultant Act. RSMo 407.935 et. Seq. Those services
       include planning a transaction to halt the foreclosure pending on
       [Appellant’s] home, representing to [Appellant] that the transaction it
       planned and proposed would halt the foreclosure, having deeds and
       contracts drawn up, and appraisals made. Greg Matlock hired attorneys
       and a title company to aid him in planning the transaction, drawing up the
       contracts, performing the closing and to perfect [A & L]’s interest by
       ejecting [Appellant] from his home. . . .

       ....

       On March 3, 2017, the Court, in [Prior Case], found that, through actions
       of its agent Greg Matlock, that [A & L] acted as a foreclosure consultant,
       and violated the [sic] Rsmo 407.940 in “one or more” ways, finding for
       [Appellant] on Count II of his amended Counterclaim. As such Greg
       Matlock is a foreclosure consultant under Rsmo 407.935 and has
       performed an illegal and criminal act under Rsmo 407.940.

       The second count of Appellant’s Petition against Respondent Attorneys alleges,

among other matters:

       Greg Matlock hired [Husch] to aid in providing foreclosure consulting
       services for [A & L]. Those services included planning the transaction
       and drafting the documents that evidence the September 12, 2014
       transaction at issue here.



                                            3
        Defendant Cory L. Collins, in the course and scope of his employment
        with [Husch], planned and drafted the documentation for the transaction of
        September 12, 2014.

        ....

        Also on December 2, 2015, Ms. Shelly Rosenfelder, acting in the course
        and scope of her employment with [Husch], despite personally being put
        on notice that she was proceeding on a voided contract, aided Greg
        Matlock and [A & L], by ejecting [Appellant] from his home, thereby
        perfecting [A & L]’s unlawful interest in [Appellant’s] home in [Prior
        Case].

        ....

        While attorneys are exempted from the [FCA], they may not help others
        violate the act. Per Rsmo 562.046. “It is no defense to any prosecution
        for an offense in which the criminal responsibility of the defendant is
        based upon the conduct of another that … (2) The defendant does not
        belong to that class of persons who was legally capable of committing the
        offense in an individual capacity.”

        For aiding [A & L] by planning the transaction, executing the transaction,
        and ultimately perfecting [A & L’]s unlawful interest by ejecting
        [Appellant] from his home, [Respondent Attorneys] are all liable to
        [Appellant] by operation of RSMo 562.041 as accessories to the acts of [A
        & L] and Greg Matlock, and are jointly and severally liable to [Appellant]
        with [A & L] and Greg Matlock.

        Respondent Attorneys filed a motion to dismiss Appellant’s petition. In their

motion, they contend that Appellant’s claim against them should be dismissed because it

fails to state a claim for which relief could be granted for three reasons: (1) the claim was

precluded by Prior Case (referred to as the “rule against splitting causes of action[ 2] and

the doctrine of res judicata”); (2) section 562.041 is a criminal statute and does not give

rise to a private civil claim (referred to as lack of “standing”); and (3) “absent exceptional

circumstances, an attorney is not liable for an injury to a nonclient arising out of the

representation of the client[.]” As to the last reason, the motion further asserts that
2
  In its judgment, the trial court rejected the “splitting causes of action” defense stating that it “only
applies to actions involving the same parties[,]” and citing Lee v. Guettler, 391 S.W.3d 311,313 (Mo. 1965)
in support of that proposition.


                                                    4
Appellant’s petition does not “allege any conduct constituting the exceptional

circumstances that would allow [Appellant] to assert a claim against them.”

           Matlock also filed a motion to dismiss, claiming that Appellant’s claim against

him was barred by Prior Case and the application of “the rule against splitting causes of

action[ 3] and the doctrine of res judicata” and that Appellant “does not have standing or

authority to assert claims of criminal liability.”

           The trial court thereafter entered judgment sustaining Respondents’ motions to

dismiss on the grounds that Appellant’s claims were litigated in Prior Case and, therefore,

Appellant was precluded from litigating those claims in this case and that Appellant

“cannot state a claim against [Respondents] because it is well established that attorneys

are not liable to third parties for actions taken during the course of representation.”

Within thirty days thereafter, Appellant filed a motion to set aside the judgment and for

leave to file an amended petition. The trial court denied both motions, and this appeal

timely followed. Additional facts, as required and related to particular points, will be set

out in our discussion of Appellant’s points relied on.

                     Standard of Review and Applicable Legal Principles

                    A motion to dismiss for failure to state a cause of action is solely a
           test of the adequacy of the plaintiff’s petition. It assumes that all of
           plaintiff’s averments are true, and liberally grants to plaintiff all
           reasonable inferences therefrom. No attempt is made to weigh any facts
           alleged as to whether they are credible or persuasive. Instead, the petition
           is reviewed in an almost academic manner, to determine if the facts
           alleged meet the elements of a recognized cause of action, or of a cause
           that might be adopted in that case.




3
    See fn. 2.


                                                  5
Bosch v. St. Louis Healthcare Network, 41 S.W.3d 462, 464 (Mo. banc 2001) (quoting

Nazeri v. Missouri Valley College, 860 S.W.2d 303, 306 (Mo. banc 1993) (internal

citations omitted)).

                                          Discussion

        For ease of analysis, we address Appellant’s points out of order.

                  Dismissal of Count Two against Respondent Attorneys

        In his fourth point, Appellant claims the trial court erred in dismissing his claim

against Respondent Attorneys because the second count in his petition against them

pleaded an “exceptional act” exception to the general rule that “lawyers are not liable to

third parties for the acts of their clients or for the actions of the lawyer in the ordinary

course of the practice of law.”

        Generally, an attorney is not liable to a third party who is not his or her client

because the attorney is not in an attorney-client relationship with the third party.” Roth

v. La Societe Anonyme Turbomeca France, 120 S.W.3d 764, 776 (Mo.App. 2003)

(citing Macke Laundry Serv. Ltd. P’ship v. Jetz Serv. Co., Inc., 931 S.W.2d 166, 176–

77 (Mo.App. 1996)). This general rule arises out of “the attorney’s fiduciary duty to the

client, and the public policy that attorneys be able to discharge that duty by freely using

those procedures that are necessary to competently represent their clients unfettered by

fear of personal liability.” Macke, 931 S.W.2d at 177.

        One exception to this general rule, which has come to be known as the

“exceptional circumstances” rule, are cases involving fraud, collusion, or malicious or

tortious acts by the attorney. Donahue v. Shughart, Thomson & Kilroy, P.C., 900

S.W.2d 624, 627 (Mo. banc 1995); Macke, 931 S.W.2d at 177. “Although the rule states

that an attorney may be liable to a nonclient when the attorney has committed a ‘tortious


                                               6
act,’ not all tortious conduct is encompassed by the rule. The rule is limited to intentional

torts.” Macke, 931 S.W.2d at 178 (citing Mark Twain Kansas City v. Jackson, 912

S.W.2d 536, 538 (Mo.App.1995)). Because “the client’s misconduct cannot be imputed

to the attorney[,]” Macke, 931 S.W.2d at 176 (citing Henderson v. Cape Trading Co.,

316 Mo. 384, 289 S.W. 332, 335 (1926)), this rule necessarily focuses only upon the

attorney’s conduct.

       The second count of Appellant’s petition alleges that Respondent Attorneys

conducted themselves in two respects: first, they “planned and drafted the documentation

for the transaction of September 12, 2014[,]” and, second, they represented their client in

court “by ejecting [Appellant] from his home[,]” while on notice from Appellant that

Appellant claimed that the underlying contract was void. The petition does not allege

any other conduct by Respondent Attorneys.

       Liberally granting Appellant all reasonable inferences from these allegations, see

Bosch, 41 S.W.3d at 464; Nazeri, 860 S.W.2d at 306, they support only that Respondent

Attorneys provided legal services in the course of representing their client—planning and

drafting legal documents, appearing in court proceedings, and receiving legal contentions

from opposing parties. These allegations fall well short of supporting any claim that

Respondent Attorneys engaged in any fraud, collusion, or malicious or tortious acts such

that their conduct would fall within the “exceptional circumstances” rule.

       Appellant’s argument under this point is faulty in two respects. First, without

citation to any supporting legal authority, Appellant imputes Matlock’s alleged

misconduct to Respondent Attorneys. Second, premised upon Matlock’s imputed

misconduct, Appellant speculates, untethered to any allegations in the petition, as to the




                                             7
state of mind of Respondent Attorneys while performing the alleged legal services for

their client. Neither premise has any merit. Matlock’s alleged misconduct, as previously

noted, cannot be imputed to Respondent Attorneys, Macke, 931 S.W.2d at 176, and there

are no factual allegations in the petition as to what the Respondent Attorneys knew or

should have known while engaging in their alleged conduct in providing legal

representation to Matlock.

       Appellant’s reliance on White v. McCoy Land Co., 101 S.W.2d 763 (Mo.App.

1936), aff’d White v. Scarritt, 341 Mo. 1004, 111 S.W.2d 18 (1937), and Kennedy v.

Kennedy, 819 S.W.2d 406 (Mo.App. 1991), is misplaced. Appellant describes both cases

by quoting the following from Macke:

       In White v. McCoy Land Co., 101 S.W.2d at 766, an attorney, who was
       guilty of fraudulent acts and representations, was held liable for instituting
       a suit when the attorney knew his client’s claim had no merit and that the
       suit was being instituted in bad faith for the purpose of compelling
       payment from the defendant. The exceptional circumstances rule was also
       utilized in Kennedy, 819 S.W.2d at 410, to find that the nonclient plaintiffs
       stated a cause of action for tortious interference with a business
       relationship and slander of title where the plaintiffs pled that the attorney
       maliciously published false representations which the attorney knew or
       should have known were false.

Macke, 931 S.W.2d at 177–78. Appellant omits and fails to consider, however, that the

defendant attorney in White was a director and the president of his client, McCoy Land

Company; that he owned 25% of the stock of the company; that he and his brother owned

a little over 50% of the stock in the company; and that, in addition to the fees his law firm

received in representing McCoy Land Company in the underlying case at issue, he also

received compensation from the company as its president “for devot[ing] himself

assiduously to the services of the company in investigation . . . [and] closing up the

settlement of said case.” White, 101 S.W.2d at 764. Here, there are no allegations in



                                             8
Appellant’s petition that Respondent Attorneys’ alleged conduct occurred for any reason

other than in their role as an attorney representing their client.

         Kennedy is also easily distinguishable. Here, unlike in Kennedy, there are no

factual allegations in Appellant’s petition supporting that any of Respondent Attorneys’

alleged conduct was malicious or involved any representations that they knew or should

have known were false.

         In its judgment, the trial court determined that Appellant’s petition “fails to

sufficiently allege any conduct of [Respondent] Attorneys[] constituting exceptional

circumstances.” For the above reasons, Appellant’s fourth point and supporting

argument fail to demonstrate otherwise and, therefore, the point is denied. 4

                                Denial of Motion to Amend Petition

         Appellant’s fifth point asserts that the trial court abused its discretion in denying

him “leave to amend” to assert additional claims against Respondent Attorneys. We

disagree.

         Appellant filed his initial petition on August 9, 2017. Respondent Attorneys filed

their motion to dismiss challenging the adequacy of count two of Appellant’s petition on

September 11, 2017. Fifteen months later, after repeated briefing 5 and argument by the

parties, the trial court entered its judgment on December 14, 2018, dismissing count two

of Appellant’s petition as to Respondent Attorneys. Thirty days after that, on January 13,

4
  Because the trial court’s judgment dismissing the second count of Appellant’s petition against the
Respondent Attorneys is independently supported on this basis, we need not consider whether it is
supported on any other basis as challenged in Appellant’s first three points.
5
  Appellant filed a response to the motion to dismiss on December 11, 2017, in which he discusses
Respondent Attorneys’ liability as “civil conspirators.” In his brief on appeal, Appellant now characterizes
this discussion as his “[offer] to amend his petition to include a claim of civil conspiracy[.]” Appellant
directs us to nothing in that document, however, that mentions the amendment of Appellant’s initial
petition or that in any manner can be construed as a request by Appellant for leave to file an amended
petition. Similarly, Appellant points us to nothing in the record on appeal where he ever sought any ruling
from the trial court on this response other than the denial of Respondent Attorneys’ motion to dismiss.


                                                     9
2019, Appellant filed a motion for leave to file an amended petition. He attached to that

motion his proposed first amended petition, which purported to assert two additional

claims against Respondent Attorneys—civil conspiracy (count 4) and legal malpractice

(count 5). 6 Thereafter, the trial court denied Appellant’s motion for leave to file an

amended petition.

                 Rule 67.06 provides that “[o]n sustaining a motion to dismiss a
         claim . . . the court shall freely grant leave to amend.” Similarly, Rule
         55.33(a) states that “leave [to amend] shall be freely given when justice so
         requires.”[ 7] While both rules stress granting amendments to pleadings
         liberally, they do not confer an absolute right to file even a first amended
         petition. Denial of leave to amend is within the sound discretion of the
         trial court, and its decision will not be disturbed unless there is a showing
         that such court palpably and obviously abused its discretion. Judicial
         discretion is abused when the court’s ruling is clearly against the logic of
         the circumstances presented to the court and is so unreasonable and
         arbitrary that it shocks the sense of justice and indicates a lack of careful,
         deliberate consideration.

Moore v. Firstar Bank, 96 S.W.3d 898, 903–04 (Mo.App. 2003) (internal case

quotations and citations omitted); see also Dibrill v. Normandy Assocs., Inc., 383

S.W.3d 77, 92 (Mo.App. 2012); Tisch v. DST Sys., Inc., 368 S.W.3d 245, 257 (Mo.App.

2012).

                 The recognized purpose of allowing amendments to pleadings is to
         allow a party to present evidence that was overlooked or unknown when
         the original pleading was filed without changing the original cause of
         action. Appellate courts have found no abuse of discretion in denying the
         amended pleadings of parties who fail to show the pleadings include any
         facts that were unknown when the original pleading was filed.

Moore, 96 S.W.3d at 904.




6
  Count three in both Appellant’s initial petition and in his proposed first amended petition seeks no relief
against Respondent Attorneys or Matlock.
7
  The provisions quoted from Rules 67.06 and 55.33(a) have not changed since that time. All rule
references are to Missouri Court Rules (2019), unless otherwise indicated.


                                                      10
        Here, Appellant’s proposed first amended petition purports to assert two

additional legal theories of liability against Respondent Attorneys—civil conspiracy and

legal malpractice. Yet, these additional legal theories are premised entirely on the factual

allegations of Respondent Attorneys’ conduct contained in Appellant’s initial petition.

Appellant did not assert or demonstrate to the trial court that his proposed first amended

petition presents any factual allegations about Respondent Attorneys’ conduct that were

overlooked or unknown to him when he filed his initial petition. Also, Appellant failed

to proffer to the trial court any reason why these proposed additional theories of liability

were not included in his initial petition. In the absence of Appellant providing this

critical information to the trial court, we cannot say that the trial court abused its

discretion in denying him leave to file his first amended petition. See Dibrill, 383

S.W.3d at 92; Tisch, 368 S.W.3d at 258; Moore, 96 S.W.3d at 904.

        Moreover, the trial court’s denial of leave to amend the petition is buttressed by

Appellant’s lack of timeliness in seeking such leave. First, as previously noted,

Appellant failed to offer the trial court any reason why these additional legal theories

against Respondent Attorneys could not have been included in his initial petition.

        Second, Appellant failed to offer to the trial court any explanation as to why he

did not seek to amend his petition during the fifteen months between the filing of

Respondent Attorneys’ motion to dismiss and the entry of the trial court’s judgment. As

demonstrated by Appellant’s argument on December 11, 2017, in his response to the

motion to dismiss—over twelve months before entry of the trial court’s judgment—

Appellant was well aware of his potential claims of civil conspiracy and malpractice




                                              11
against Respondent Attorneys. In that response, Appellant argued that Respondent

Attorneys were “civil conspirators” and that Collins had “committed malpractice.”

         Third, Appellant first sought leave to amend his petition only after both extended

and repeated briefing and argument to the trial court and the trial court’s entry of the

judgment dismissing his petition. “‘Our liberal amendment rules are not meant to be

employed as a stratagem of litigation. Rather, the purpose of the grant of an amendment

is to allow a party to assert a matter unknown or neglected from inadvertence at the time

of the original pleading.’” Tisch, 368 S.W.3d at 258 (quoting with citations omitted

Kenley v. J.E. Jones Constr. Co., 870 S.W.2d 494, 498 (Mo.App. 1994)).

         In the above context, Appellant has failed to demonstrate that the trial court’s

denial of his motion to amend his petition was clearly against the logic of the

circumstances presented to the trial court or was so unreasonable and arbitrary that it

shocks the sense of justice and indicates a lack of careful, deliberate consideration. See

Moore, 96 S.W.3d at 903–04. Appellant’s fifth point is denied.

                             Dismissal of Count One against Matlock

                                            Lack of Standing

         Appellant’s third point challenges the dismissal of his FCA claim against Matlock

under count one of his petition for lack of standing. This point has merit.

         In Matlock’s motion to dismiss, Matlock contends that Appellant “does not have

standing or authority to assert claims of criminal liability and his counsel does not have

authority to prosecute such claims.” 8


8
  The trial court’s judgment is not the model of clarity. Matlock has not directed us to any place in it where
the trial court addresses or relies upon in any manner Matlock’s lack of standing claim as asserted in his
motion to dismiss to support the dismissal of count one of Appellant’s petition and his claim against
Matlock.



                                                     12
         Matlock ignores and fails to address, however, that section 407.943 provides an

owner, as defined by section 407.935(3), a private civil cause of action for a FCA

violation by a person. 9 Rather, Matlock apparently exclusively focuses upon Appellant’s

three references in count one of his petition to section 407.940.2 that provides that “[a]ny

violation of any of the acts enumerated in subsection 1 of this section shall be a class A

misdemeanor.” These references, however, are irrelevant and superfluous as to whether

count one of Appellant’s petition states a claim against Matlock under section 407.943

and do not in any manner negate a claim so stated. Appellant asserts that count one of his

petition states a section 407.943 claim against Matlock for a FCA violation and we note

that his prayer for relief under that count mirrors the relief provided in that statute.

Matlock has never demonstrated otherwise.

         For the above reason, Appellant’s third point directed to the dismissal of count

one of his petition against Matlock for lack of standing is granted.

                                 Res Judicata (Claim Preclusion) 10

         Appellant’s first and second points challenge the trial court’s dismissal of count

While Matlock filed a respondent’s brief on appeal, he chose to address only his res judicata claim asserted
in his motion to dismiss and makes no mention of his lack of standing claim asserted in that motion. A
respondent is not required to file a brief on any issue, but without one on a particular issue, we must
adjudicate any claim of error related to that issue without benefit of whatever argument the respondent
might have presented. Turner v. Missouri Dept. of Conservation, 349 S.W.3d 434, 438 (Mo.App. 2011).
9
  Section 407.943 provides:

         1. An owner may bring an action against a foreclosure consultant for any violation of
         sections 407.935 to 407.943. Judgment shall be entered for actual damages, reasonable
         attorneys’ fees and costs, and appropriate equitable relief. The court also may, in its
         discretion, award exemplary damages equivalent to at least twice the compensation
         received by the foreclosure consultant in violation of section 407.940, in addition to any
         other award of actual damages.
         2. The rights and remedies provided in subsection 1 of this section are cumulative to, and
         not a limitation of, any other rights and remedies provided by law. Any action brought
         pursuant to this section shall be commenced within three years from the date of the
         alleged violation.
10
   The term “res judicata” is sometimes referred to as “claim preclusion” and vice versa. Traditionally,
claim preclusion bars the same parties or their privities from relitigating the same cause of action. Am.
Polled Hereford Ass’n v. City of Kansas City, 626 S.W.2d 237, 241 (Mo. 1982).


                                                     13
one of his petition against Matlock as precluded by the doctrine of res judicata. As a

prerequisite to addressing that issue, however, we must first address whether the

procedural posture of the case provided factual support for the trial court’s consideration

and resolution of that legal issue. We determine that it did not. See Warren v. Paragon

Techs. Group, Inc., 950 S.W.2d 844, 845 (Mo. banc 1997) (court can reach legal

question only after the parties comply with the applicable pleading and evidence

requirements).

         Res judicata is an affirmative defense that must be raised in a responsive

pleading along with “a short and plain statement of the facts showing that the pleader is

entitled to the defense[.]” Rule 55.08; see Rule 55.01 (requiring a petition, an answer,

and the pleading of an affirmative avoidance). Rule 55.27 requires that every defense

must be asserted in the responsive pleading, except for eleven listed defenses that

optionally may be made by motion. The res judicata defense is not included in the listed

exceptions. Rule 55.27. Matlock has not filed a responsive pleading in this case.

        A very narrow and limited exception to the pleading requirement exists, however,

“whereby a defendant may properly file a motion to dismiss for failure to state a claim

under Rule 55.27(a)(6) when it appears from the face of the petition that an affirmative

defense is applicable.” Evans v. Empire Dist. Elec. Co., 346 S.W.3d 313, 317

(Mo.App.2011).

        Our supreme court has also held that “while not expressly stated in the Rule, [the

defense] of res judicata . . . [is] in essence [a defense] alleging the plaintiff has failed to

state a claim upon which relief may be granted.” King Gen. Contractors, Inc. v.

Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 498 (Mo.




                                               14
banc 1991). Such defense, however, “may succeed only if uncontroverted facts

demonstrate the present suit is groundless[.]” Id. at 498-99 (citing Johnson v. Raban,

702 S.W.2d 134, 136 (Mo.App. 1985)).

       Rule 55.27(a) further provides that

       [i]f, on a motion asserting the defense numbered (6) to dismiss for failure
       of the pleading to state a claim upon which relief can be granted, matters
       outside the pleadings are presented to and not excluded by the court, the
       motion shall be treated as one for summary judgment and disposed of as
       provided in Rule 74.04. All parties shall be given reasonable opportunity
       to present all material made pertinent to such a motion by Rule 74.04.

Rule 55.27(a) (emphasis added). Here, the parties presented to the trial court extensive

materials from Prior Case that included filed documents and also transcripts of hearings

held. None of the factual information in these materials was included as factual

allegations in Appellant’s petition. Matters outside the pleadings, therefore, were

presented to and not excluded by the trial court. Nothing in the record, however,

indicates that the trial court advised the parties that it was treating Matlock’s motion to

dismiss as one for summary judgment or that it would dispose of it as provided in Rule

74.04. Similarly, and perhaps most significantly, nothing in the record indicates that the

trial court required or gave the parties the opportunity to file statements of uncontroverted

material facts as required by Rule 74.04(c)(1) or as allowed by Rule 74.04(c)(2) and

supported in the manner as required by those rules.

       “Facts come into a summary judgment record only per Rule 74.04(c)(1) and (2),

that is, in the form of a pleading containing separately numbered paragraphs and a

response addressed to those numbered paragraphs.” Lackey v. Iberia R-V Sch. Dist., 487

S.W.3d 57, 60–61 (Mo.App. 2016) (internal quotation marks omitted). “A trial court

grants or denies summary judgment based on facts established by the summary judgment



                                             15
motion and responses thereto; our review is confined to the same facts and does not

extend to the entire record before the trial court.” Id. at 60.

       The omission of a Rule 74.04 summary judgment record is a critical deficiency in

the legal posture of this case that renders appellate review impossible. See Energy

Creates Energy, LLC v. Heritage Group, 504 S.W.3d 142, 150 (Mo.App. 2016)

(conversion of motion to dismiss to motion for summary judgment without complying

with procedural requirements of Rule 74.04 renders appellate review impossible). A trial

court’s grant of summary judgment is reviewed de novo. ITT Commercial Fin. Corp. v.

Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). If no genuine

issue of material fact exists and the movant is entitled to judgment as a matter of law, the

trial court’s decision will be affirmed. Id. at 377. The trial court record before us, sans a

summary judgement record developed in accordance with Rule 74.04 requirements, does

not allow us to review the material facts for the existence of genuine issues as

contemplated under the Rule 74.04 summary judgment rubric.

       This is so because in addressing the applicability of the asserted res judicata

defense, the trial court made findings of fact in its judgment as to the order of filing of

certain documents in Prior Case that were filed on the same date and, more importantly,

the Prior Case trial court’s awareness of those documents at a particular time on that date

when making a relevant ruling. These facts were not established by a summary judgment

record, i.e., the “separately numbered paragraphs” and responses per Rule 74.04(c). We,

therefore, cannot determine whether they are uncontroverted facts as is required to

uphold the trial court’s judgment. See King Gen. Contractors, Inc., 821 S.W.2d at 498-

99 (res judicata asserted in motion to dismiss considered by trial court as motion for




                                              16
summary judgment “may succeed only if uncontroverted facts demonstrate the present

suit is groundless.”).

        Accordingly, on the factual basis relied upon by the trial court in its judgment to

apply res judicata to dismiss Appellant’s claim in count one of his petition against

Matlock, we grant Appellant’s first and second points. Absent any other basis upon

which to affirm the trial court’s judgment, the grant of these points would require reversal

of the trial court’s judgment dismissing count one of Appellant’s petition against Matlock

and remand for further proceedings consistent with this opinion.

        On appeal, however, Matlock asserts that the trial court’s judgment, nevertheless,

should be affirmed on a different application of res judicata other than that presented to

and decided by the trial court in its judgment. In his brief, Matlock asserts that “[b]y

electing to take the claim against [A & L] to final judgment, Appellant is precluded from

pursuing the instant action against Matlock by virtue of res judicata.” In other words,

Matlock claims that the mere existence of the Prior Case judgment in Appellant’s favor

and against A & L, Matlock’s principal, as alleged in Appellant’s petition, precludes

Appellant’s claim against him as A & L’s agent in this case arising out of the same

transaction.

        Matlock contends that “[a]s held in Barkley v Carter Cnty. State Bank, 791

S.W.2d 906, 914 (Mo.App. 1990) (citing Restatement (Second) of Judgments § 51),

when a relationship between two persons exist such that one is vicariously responsible for

the conduct of the other, there is privity for res judicata purposes.” As additional support

for his contention, Matlock also relies upon Topchian v. JP Morgan Chase Bank, N.A.,

539 S.W.3d 879 (Mo.App. 2017). Matlock’s reliance on these cited materials, however,




                                             17
is misplaced.

       The general rule is that “[w]hen two defendants are potentially liable for the same

loss, the claims are considered separate and two suits can be maintained against the

differing parties.” Lauber-Clayton, LLC v. Novus Props. Co., 407 S.W.3d 612, 620

(Mo.App. 2013) (quoting Hollida v. Hollida, 190 S.W.3d 550, 556 (Mo.App. 2006)

(citing Restatement (Second) of Judgments § 49)). Both Lauber-Clayton, LLC and

Hollida rely upon and recite from comment a to Restatement (Second) of Judgments § 49

(1982), which provides:

       When a person suffers injury as the result of the concurrent or consecutive
       acts of two or more persons, he has a claim against each of them. If he
       brings an action against one of them, he is required to present all the
       evidence and theories of recovery that might be advanced in support of the
       claim against that obligor. . . . If he recovers judgment, his claim is
       ‘merged’ in the judgment so that he may not bring another action on the
       claim against the obligor whom he has sued. . . . Correlatively, if
       judgment is rendered against him, he is barred from bringing a subsequent
       action against the obligor. . . . But the claim against others who are liable
       for the same harm is regarded as separate. Accordingly, a judgment for or
       against one obligor does not result in merger or bar of the claim that the
       injured party may have against another obligor.

Lauber-Clayton, LLC, 407 S.W.3d at 620; Hollida, 190 S.W.3d at 556. The injured

party’s right to maintain separate actions against multiple obligors, however, is subject to

constraints. Restatement (Second) of Judgments § 49 cmt a (1982).

       One such constraint is identified in Restatement (Second) of Judgments § 51

(1982), which provides:

               If two persons have a relationship such that one of them is
       vicariously responsible for the conduct of the other, and an action is
       brought by the injured person against one of them, the judgment in the
       action has the following preclusive effects against the injured person in a
       subsequent action against the other.




                                             18
       (1) A judgment against the injured person that bars him from reasserting
       his claim against the defendant in the first action extinguishes any claim
       he has against the other person responsible for the conduct unless:

               (a) The claim asserted in the second action is based upon grounds
               that could not have been asserted against the defendant in the first
               action; or

               (b) The judgment in the first action was based on a defense that
               was personal to the defendant in the first action.

       (2) A judgment in favor of the injured person is conclusive upon him as to
       the amount of his damages, unless:

               (a) There were limitations on the competence of the forum in the
               first action preventing him from obtaining the full measure of his
               damages, as stated in § 26(1)(c), or he exercised the option stated
               in § 26(1)(e) to divide his claim; or

               (b) Different rules govern the measure of damages in the two
               actions.

       (3) If the action is brought against the primary obligor and judgment is
       against the injured person, it extinguishes the claim against the person
       vicariously responsible if under applicable law the latter is an indemnitor
       whose liability arises only when the primary obligor is found liable to the
       injured person.

       (4) A judgment by consent for or against the injured person does not
       extinguish his claim against the person not sued in the first action except:

               (a) In the circumstances stated in Subsection (3); and

               (b) To the extent stated in § 50.

Restatement (Second) of Judgments § 51 (1982) (emphasis added).

       In Barkley, this court relied upon subsection (1) of Restatement (Second) of

Judgments § 51 (1982) to hold that a judgment against Barkley, the injured party, in a

prior case he brought against a bank precluded the subsequent case by Barkley against an

officer of that bank for actions taken in that capacity. Barkley, 791 S.W.2d at 914–15.

Because the Prior Case judgment here is in favor of Appellant, however, neither Barkley

nor subsection (1) of Restatement (Second) of Judgments § 51 (1982), as applied in


                                             19
Barkley, provide any basis for Matlock’s contention that the Prior Case judgment in favor

of Appellant precludes Appellant’s claim against him in this case.

       ’’’Matlock’s reliance upon Topchian is also unavailing. Matlock ignores that the

Western District of our court in that case expressly analyzed the claims before it “under

federal res judicata law as interpreted by the United States Court of Appeals for the First

Circuit.” Topchian, 539 S.W.3d at 889–90. Matlock fails to provide any citation to

relevant Missouri legal authority supporting that Missouri’s law on the claims addressed

in Topchian is the same as the foreign law applied by the court in that case. In the

absence of citation to relevant Missouri legal authority making that connection, we

cannot conclude that Topchian provides any basis for Matlock’s contention that the Prior

Case judgment in favor of Appellant precludes Appellant’s claim against him in this case.

                                         Decision

       The trial court’s judgment dismissing count two of Appellant’s petition against

Respondent Attorneys is affirmed. The trial court’s judgment dismissing count one of

Appellant’s petition against Matlock is reversed, and the case is remanded to the trial

court for further proceedings on that count consistent with this opinion.



GARY W. LYNCH, P.J. – OPINION AUTHOR

NANCY STEFFEN RAHMEYER, J. – CONCURS

WILLIAM W. FRANCIS, JR., J. – CONCURS




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