                                           In
                                           I the
                         Misssouri Court
                                   C     off Appeaals
                                   Westeern Disttrict
JAMES
    S DYE, DDS, ET AL.,,                        )
                                                )
                App
                  pellants,                     )    D78352
                                                    WD
                                                )
v.                                              )   OPIINION FIL
                                                               LED: Deceember 8, 2015
                                                )
MISSOURI DEPA
            ARTMENT T OF                        )
     L SERVIC
SOCIAL      CES, MISSOURI                       )
MEDIC
    CAID AUDIT AND                              )
COMPLLIANCE UNIT,
            U                                   )
                                                )
                Resp
                   pondent.                     )

                App
                  peal from thhe Circuit Court of C
                                                  Cole Countty, Missourri
                          Thee Honorablee Jon E. Beeetem, Judgee

Before Division One:
                O    Anthon
                          ny Rex Gab
                                   bbert, Presidding Judge,, Victor C. Howard, Juudge
                          and Cynthiia L. Martinn, Judge


       Jaames Dye, DDS ("Dy
                          ye") and Brrenda Herrm
                                               man, DDS ("Herrmann") (collectively

                           gment in favor of the Missoouri Mediccaid Audit and
"Appellaants") appeal a judg

Compliaance Unit (""MMAC"). Appellantts argue thaat the trial ccourt lackedd jurisdictioon to

enter thee judgment because theey filed a motion
                                          m      to vooluntarily diismiss theirr case beforre the

judgmen
      nt was enterred, renderiing the judg
                                         gment a nulllity. Findinng no error,, we affirm..
                            Factual and Procedural History

         In May 2013, the MMAC informed Dye that it would be conducting an audit of

Medicaid claims Dye and his dentist office, All About Smiles, LLC, had filed with the

MMAC.       In June 2013, the MMAC informed Dye that it was sanctioning Dye by

requiring him to file Medicaid claim forms by mail, rather than electronically, permitting

the MMAC to review all claims prior to payment ("Sanction"). Dye and All About

Smiles, LLC appealed this administrative decision by filing a petition for review with the

Administrative Hearing Commission.

         On June 25, 2013, Dye and All About Smiles, LLC separately filed a petition in

the Greene County Circuit Court. The petition sought a temporary restraining order to

prevent the MMAC from enforcing the Sanction "until such time as the Administrative

Hearing Commission can conduct a review of" the MMAC's decision. The petition

alleged, among other things, that Dye's due process rights had been violated by the

imposition of the Sanction without prior notice and a hearing.          The lawsuit was

transferred to the Circuit Court of Cole County on July 3, 2013, based on a change of

venue.

         The docket sheet reflects that an amended petition was filed on July 26, 2013,

again seeking a temporary restraining order, and that a second amended petition seeking a

temporary restraining order was filed on August 21, 2013.

         A hearing was conducted on September 5, 2013, regarding Dye's request for a

temporary restraining order. During the hearing, the parties argued about whether Dye

had administrative remedies available, whether Dye's amended petition properly invoked

                                            2
the trial court's authority to conduct judicial review of a noncontested agency decision

under section 536.150,1 and whether the amended petition properly sought a temporary

restraining order pursuant to Rule 92.2 The trial court expressed reservations about

whether Dye's petition was sufficient to request judicial review pursuant to section

536.150. A September 5, 2013 docket entry indicates that the trial court denied Dye's

request for a temporary restraining order "without prejudice," and dismissed Dye's

petition "with leave granted to file an amended pleading within the next twenty (20) days

and failing to do so, the cause will be dismissed."

         On September 17, 2013, the docket sheet indicates that Dye filed an "amended

petition for judicial review and preliminary injunction." The amended petition is not

included in the record on appeal. According to the docket sheet, MMAC filed a motion

to dismiss the amended petition with respect to All About Smiles, LLC, suggesting that

All About Smiles, LLC was also named as a plaintiff in the amended petition.3 MMAC

also filed a motion opposing the request for preliminary injunctive relief.

         On September 24, 2013, the parties appeared for a hearing, presumably to address

MMAC's pending motions. The docket sheet indicates that on October 2, 2013, the trial

court entered an order granting in part and denying in part the petition for preliminary

injunction and dismissing the amended petition as to plaintiff All About Smiles, LLC. A

copy of the trial court's written order addressing these rulings has not been made a part of

         1
           All statutory references are to RSMo 2000 as supplemented unless otherwise indicated.
         2
           All citations to the Rules are to Missouri Court Rules Volume I--State (2015).
         3
           Because Herrman is an Appellant, we assume she was also named as a plaintiff in the amended petition.
There had been discussion during the September 5, 2013 hearing about whether Herrman was properly before the
court as a plaintiff since she was not named in the caption of the several petitions filed by Dye before the September
5, 2013 trial court order dismissing his petition with leave to refile.

                                                          3
the record on appeal. And no transcript from the September 24, 2013 hearing has been

provided. We thus cannot discern from the record on appeal the extent to which evidence

was taken at the hearing to support the trial court's subsequent entry of a preliminary

injunction--primary relief sought by the Appellant's amended petition.4

         According to the docket sheet, on January 7, 2014, Appellants sought leave to file

a second amended petition. MMAC opposed the motion. According to the docket sheet,

on January 23, 2014, MMAC filed a motion to amend the trial court's October 2, 2013

preliminary injunction order.

         The trial court conducted a hearing on January 23, 2014, the transcript for which

has been made a part of the record on appeal. The trial court addressed MMAC's motion

to amend the preliminary injunction. The docket sheet indicates that an amended order

granting and denying in part Appellants' petition for preliminary injunction was entered

on January 23, 2014. A copy of this order is not included in the record on appeal.

         During the same hearing the parties also discussed the remaining matters to be

determined as framed by Dye and Hermann's amended petition and the best way to

resolve those matters. Appellants' counsel advised the trial court that he "think[s] we

should just set it for trial." The parties agreed on a trial date of April 18, 2014.




         4
            Because we otherwise conclude that the Appellants had no right to voluntarily dismiss their lawsuit
without prejudice without an order from the trial court, we need not resolve whether the introduction of evidence to
secure a preliminary injunction constitutes the submission of evidence at trial pursuant to Rule 67.02(a) when a
preliminary (and not a permanent) injunction is the principle relief sought by a petition. Cf. Cook v. McElwain, 432
S.W.3d 286, 290 (Mo. banc 2014) (noting that "[g]enerally, a preliminary injunction hearing is not . . . considered a
'trial',' meaning a trial on the merits," in a case where a permanent injunction was sought by the petition) (citation
omitted).

                                                          4
       On April 18, 2014, the parties appeared for trial. At that time, Appellants' counsel

advised the trial court that because of developments in proceedings before the

Administrative Hearing Commission, he no longer needed the trial court to review

documentation involving claims that remained subject to the Sanction and only needed

the court to determine whether his due process rights had been violated by the denial of a

pre-deprivation hearing before imposition of the Sanction. Appellants' counsel advised

the trial court that he had "a trial brief and a motion for judgment on the pleadings, [and]

associated exhibits, that I would like to offer to the court." [Tr. 91] Counsel then advised

the court that "[t]he only thing that I intend to put on today is evidence with regard to the

question of notice, what notice and what opportunity to be heard, the due process issue,

that is all I intend to put on." [Tr. 92] The pleadings and exhibits submitted by the

Appellants to the trial court have not been included in the record on appeal.

       After receiving the materials submitted by the Appellants, and hearing argument

from both parties regarding the Appellants' due process claim, the trial court reiterated

that it would only be deciding whether the Appellants' due process rights were violated

and then stated: "I'll show the cause submitted on that basis." Docket entries for April 18,

2014, show that evidence was taken and that the cause was taken under advisement.

       On July 9, 2014, Appellants filed a motion to dismiss their lawsuit without

prejudice. The motion made no reference to Rule 67.02(a) and instead argued that the

trial court did not have jurisdiction to entertain the due process issue submitted to it for

decision. MMAC opposed the motion. The trial court did not rule on the motion.



                                             5
       On December 31, 2014, the trial court entered a judgment ("Judgment") ruling that

the Appellants' due process rights were not violated by imposition of the Sanction.

       The Appellants timely appeal.

                                          Analysis

       In their sole point on appeal, the Appellants argue that the trial court lacked

jurisdiction to enter the Judgment because they filed a motion to dismiss their case

without prejudice pursuant to Rule 67.02(a) before the Judgment was entered, rendering

any subsequent action by the trial court a nullity.

       Rule 67.02(a) provides that "a civil action may be dismissed by the plaintiff

without order of the court anytime . . . [i]n cases tried without a jury, prior to the

introduction of evidence at the trial." "A voluntary dismissal is effective on the date it is

filed with the court." State ex rel. Frets v. Moore, 291 S.W.3d 805, 812 (Mo. App. S.D.

2009) (internal citation omitted). "Consequently, a trial court loses jurisdiction to enter

any subsequent orders regarding the dismissed action." Id. "The circuit court may take

no further steps as to the dismissed action, and any step attempted is viewed a nullity."

Id. Thus, the dispositive question presented in this case is whether the Appellants'

motion to dismiss was filed "prior to the introduction of evidence at the trial." We

conclude that it was not.

       We note at the outset that the motion to dismiss without prejudice filed by the

Appellants did not purport to be based on Rule 67.02(a) but instead argued a substantive

basis for dismissal--that the trial court lacked jurisdiction to entertain the due process



                                              6
issue submitted to it for decision on April 18, 2014. We are not persuaded, therefore, that

the Appellants ever attempted to exercise their rights pursuant to Rule 67.02(a).5

         Even if we view the motion to dismiss without prejudice as having been filed

pursuant to Rule 67.02(a), the Appellants' claims not already resolved by the grant of a

preliminary injunction were set for trial at the Appellants' request on April 18, 2014. The

parties appeared on that date prepared to proceed to trial. The Appellants' announced that

given intervening developments before the Administrative Hearing Commission, the

Appellants were withdrawing all remaining issues framed by their petition except

whether imposition of the Sanction without prior notice and a hearing violated their due

process rights. The Appellants submitted the materials they deemed essential to the trial

court's determination of this issue. Those materials included a trial brief, a motion for

judgment on the pleadings, and related exhibits. The trial court's docket entries reflect

that "evidence" was taken on April 18, 2014, and that the case was taken under

advisement. This was a trial.

         The Appellants argue that no "evidence" was submitted to the court, and that no

trial occurred on April 18, 2014, because the trial court needed only resolve an issue on

the pleadings.         The limited record on appeal we have been provided refutes both

assertions.6 The case was set for trial on April 18, 2014. The docket sheet states that


         5
           During oral argument, the Appellants took the position that they are alternatively claiming error on appeal
because the Judgment is legally erroneous, as the trial court had no legal authority to determine the due process issue
framed by the Appellants' amended petition, and submitted to the trial court for decision on April 18, 2014.
Appellants' point on appeal does not raise this claim of error, and no such claim of error is preserved for our review.
         6
           We are aided in our conclusion that the record refutes the Appellants' contentions by what the Appellants
have failed to include in the record on appeal. The Appellants have not provided us with the version of their petition
giving rise to the Judgment; with preliminary injunction orders affording the Appellants the primary relief sought in
their lawsuit; or with the pleadings and exhibits submitted to the trial court on April 18, 2014. Rule 81.12(a)

                                                          7
evidencee was taken
                  n on April 18, 2014. The transccript reflectts that Apppellants' couunsel

offered exhibits
        e        to the
                    t trial cou
                              urt on Aprill 18, 2014, and that Apppellants' ccounsel inteended

                  o the due process issue. Howevver narrow
to offer evidence on                                     w the remainning issue tto be

determin                                  d set for trial and prrovided thee trial court with
       ned, the parrties appearred on the date

all the information
                  n they deem
                            med necessaary to perm
                                                 mit the triall court to ffully and finnally

determin
       ne the substtantive righ
                              hts and liabiilities of thee parties. SSee Washinggton Univ. M
                                                                                           Med.

Ctr. Red
       developmen
                nt Corp. v. Komen,
                            K      637 S.W.2d 551, 53 (Moo. App. E.D
                                                                   D. 1982) ("O
                                                                              Once

evidencee is submittted at the trrial on the merits
                                             m      the ssubstantive rights and liabilities oof the

parties are                              ve of court is requiredd for dismisssal.").
        a at stake. Beyond this point leav

         Because
         B       the Appellantss filed theirr voluntary dismissal aafter evidennce was enttered

at trial, they weree not entitleed to voluntarily dism
                                                     miss their lawsuit wiithout prejuudice

without leave of the
                 t trial court. The trial
                                    t     court retained its jurisdiction to enterr the

Judgmen
      nt.

         Point
         P     one is denied.

                                                      Co
                                                       onclusion

         We
         W affirm th
                   he Judgmen
                            nt of the triaal court.



                                                         _____________________________
                                                                                    _________
                                                         Cynthia L. Martin, Juudge

All conccur.

requires th
          he record on app  peal to "contaiin all of the reccord, proceedinngs and evidence necessary too the determinaation
of all questtions to be pressented, by either appellant orr respondent, too the appellate court for decission." Where
pleadings, transcripts, or exhibits are no ot made a part of the record oon appeal, suchh "omissions w  will be taken as
favorable to
           t the trial courrt's ruling and unfavorable
                                            u             to the appellant."" Saturn of Tifffany Springs vv. McDaris, 331
S.W.3d 704, 712 (Mo. Ap     pp. W.D. 2011 1) (citation omiitted).

                                                             8
