                                          In the
                         Missouri Court of Appeals
                                  Western District
 JASON HARTMAN, ET AL.,                        )
                                               )
                Appellants,                    )   WD83039 Consolidated with
                                               )   WD83139
 v.                                            )
                                               )   OPINION FILED: May 26, 2020
 KEN LOGAN AND QUENTIN                         )
 KEARNEY,                                      )
                                               )
               Respondents.                    )

             Appeal from the Circuit Court of Jackson County, Missouri
                      The Honorable S. Margene Burnett, Judge

 Before Division One: Lisa White Hardwick, Presiding Judge, Cynthia L. Martin, Judge
                           and Thomas N. Chapman, Judge


       Jason Hartman ("Hartman") and Platinum Properties Investor Network, Inc.

("PPIN") (collectively "the Plaintiffs") appeal from the trial court's entry of two judgments

sustaining Ken Logan ("Logan") and Quentin Kearney's ("Kearney") (collectively "the

Named Defendants") motion to dismiss the Plaintiffs' amended petition. The Plaintiffs

argue that the trial court erred in dismissing their amended petition because the Plaintiffs'

claims were not barred by the statute of limitations and because the trial court did not allow

the Plaintiffs time to engage in discovery to demonstrate that the amendment of the petition
related back because the Named Defendants were aware of the pending action. We vacate

one of the two judgments entered by the trial court. Because the remaining judgment

dismissed some claims that were not barred by the statute of limitations, we affirm in part,

and reverse and remand in part.

                                 Factual and Procedural History

       On April 25, 2017, the Plaintiffs filed a petition ("Original Petition") in the Circuit

Court of Jackson County against John Doe and Does 1 through 100 (collectively "the

Fictitious Defendants"). The Original Petition alleged that Hartman is the principal owner

and officer of PPIN, and that the Plaintiffs are in the business of real estate investment,

including buying and selling rental properties, referring similar opportunities to others, and

conducting seminars on real estate investing throughout the country. The Original Petition

alleged that the Fictitious Defendants are individuals who are responsible for, among other

things, publishing allegedly defamatory statements about the Plaintiffs on the internet on

or about April 28-29, 2015 and in advance of one of the Plaintiffs' seminars in Memphis,

Tennessee on May 2-3, 2015. The Original Petition alleged six causes of action against

the Fictitious Defendants: defamation, tortious interference with prospective economic

advantage or business expectancy, negligence, prima facie tort, injurious falsehood, and a

request for injunctive relief.

       After filing notices to take the depositions of records custodians of internet

providers (Comcast of Missouri, LLC and Comcast Business Communications, LLC), the

Plaintiffs filed a first amended petition on October 18, 2017 ("Amended Petition"). The

Amended Petition added Logan and Kearney as defendants, alleging that the Named

                                               2
Defendants are also engaged in the real estate business and are the Plaintiffs' former

business associates and current competitors. The Amended Petition alleged that, since

2010, the Named Defendants have been involved in litigation with Hartman regarding the

management of property owned by Hartman.           The Amended Petition alleged, upon

information and belief, that when the allegedly defamatory statements were published

online in 2015, the Named Defendants operated several businesses at an address in Blue

Springs that had a Comcast account with an IP address of 66-208-221-253. The Amended

Petition alleged that this IP address was associated with an email address that included the

name, "Russel Harrington," which was the screen name used to make the alleged

defamatory statements. The Named Defendants were each served with a copy of the

Amended Petition on August 7, 2018.

       Eight days later, on August 15, 2018, the Named Defendants filed a motion to

dismiss the Amended Petition ("Motion to Dismiss"). The Motion to Dismiss asserted that

the Amended Petition failed to state a claim against the Named Defendants. In particular,

the Motion to Dismiss argued that the facts averred in the Amended Petition were not

grounded in truth, and cited to attached deposition testimony given by Hartman in an

unrelated suit in which he testified that he did not have "specific proof" that either Logan

or Kearney personally posted the alleged defamatory statements about the Plaintiffs online.

The Motion to Dismiss argued that, because Hartman acknowledged that he did not have

"specific proof" that either of the Named Defendants personally posted the alleged

defamatory statements online, the Amended Petition was in violation of Rule 55.03(c)(3)'s



                                             3
requirement that all allegations or factual contentions have evidentiary support. 1 The

Motion to Dismiss further argued that, assuming arguendo that the Plaintiffs had

evidentiary support for their claims against the Named Defendants, the applicable statute

of limitations barred the Plaintiffs' claims against the Named Defendants. The Motion to

Dismiss argued that section 516.1402 sets forth a two-year statute of limitations on claims

of defamation and injurious falsehood so that, by the time the Amended Petition was filed

on October 18, 2017, the claims against the Named Defendants were time barred. The

Motion to Dismiss further asserted that the Amended Petition did not relate back to the

April 25, 2017 filing of the Original Petition because the Named Defendants did not have

notice of the Original Petition.

         The trial court held a case management conference on August 17, 2018.3 The trial

court entered an order setting a second case management conference for September 14,

2018, and indicated that, if the Plaintiffs' counsel filed a motion to withdraw, the trial court

would take up the motion at that time.4

         The Plaintiffs' counsel filed a motion to withdraw on August 26, 2018, citing "a

recently developed non-waivable conflict of interest." The motion to withdraw also asked




         1
           All rule references are to the Missouri Supreme Court Rules (2017), unless otherwise noted.
         2
           All statutory references are to RSMo 2000 as supplemented through April 28-29, 2015, the date that the
alleged defamatory posts were posted, unless otherwise indicated.
         3
           The Named Defendants assert that, during the August 17, 2018 case management conference, they
provided the trial court with a courtesy copy of the Motion to Dismiss, and that the trial court gave the Plaintiffs
thirty days to respond to the Motion to Dismiss.
         4
           The Plaintiffs' attorney expressed an intent to withdraw. The Plaintiffs allege that their counsel's
withdrawal was precipitated by the Named Defendants filing a suit against the Plaintiffs' former attorney for abuse
of process related to his representation of the Plaintiffs in this case and in another case. The Plaintiffs' assertion is
irrelevant to the disposition of the issues on appeal.

                                                            4
the trial court to stay or extend any deadline to respond to the Motion to Dismiss to allow

the Plaintiffs to retain new counsel.

       At the September 14, 2018 case management conference, the trial court granted the

motion to withdraw by Plaintiffs' counsel, and ordered that the Plaintiffs would have an

additional ten days to respond to the Motion to Dismiss.

       New counsel entered an appearance on the behalf of the Plaintiffs on September 18,

2018, and filed suggestions in opposition to the Motion to Dismiss ("Suggestions in

Opposition") on September 24, 2018. The Suggestions in Opposition asserted that the

Named Defendants had improperly attached an excerpt of Hartman's deposition to the

Motion to Dismiss and requested the trial court to exclude consideration of matters outside

the pleadings in accordance with Rule 55.27(a). The Suggestions in Opposition argued

that as a result, the Named Defendants' assertion that the Amended Petition is without

evidentiary support is meritless, as the Plaintiffs' claims are based on the identification of

an IP address associated with a building that the Named Defendants own. The Suggestions

in Opposition also asserted that the Motion to Dismiss was simply an attempt to prevent

the Plaintiffs from uncovering during discovery other evidence in support of the alleged

connection to the Named Defendants. The Suggestions in Opposition further argued that

the two-year statute of limitations applied only to the defamation claim set forth in the

Amended Petition, and that the statute of limitations for that claim had not yet expired

when the Amended Petition was filed because determining when the statute of limitations

begins to run is a factual inquiry not clearly established on the face of the Amended

Petition. Finally, the Suggestions in Opposition argued that determining whether the

                                              5
Amended Petition related back to the filing of the Original Petition would require

additional discovery to determine whether the Named Defendants were aware of the

Original Petition.

       The Named Defendants filed their reply suggestions in support of the Motion to

Dismiss ("Reply Suggestions") on October 5, 2018. The Reply Suggestions addressed

whether it would be appropriate for the trial court to enter summary judgment in favor of

the Named Defendants. The Reply Suggestions argued that the trial court gave the

Plaintiffs notice that it intended to treat the Motion to Dismiss as a motion for summary

judgment when, during the August 17, 2018 case management conference, it gave the

Plaintiffs thirty days to respond to the Motion to Dismiss (the same amount of time allowed

by Rule 74.04 to respond to a summary judgment motion) instead of the ten-day response

time allowed for motions to dismiss pursuant to the local rules of the Circuit Court of

Jackson County. The Reply Suggestions, relying on affidavits by Logan and Kearney,

further asserted that neither Logan nor Kearney own the property in Blue Springs in

question and that neither Logan nor Kearney have a Comcast account with the IP address

identified in the Amended Petition. In turn, the Reply Suggestions argued that the

Amended Petition's claims against the Named Defendants were without evidentiary

support in violation of 55.03(c)(3) and necessitated either the dismissal of the Plaintiffs'

claims against the Named Defendants or the entry of summary judgment in favor of the

Named Defendants.

       On February 11, 2019, the trial court entered an order granting the Motion to

Dismiss. The order did not explain the basis for the trial court's ruling. On March 8, 2019,

                                             6
the Plaintiffs filed a motion for an amended order and judgment, asking the trial court to

certify its judgment for interlocutory appeal pursuant to Rule 74.01(b); requesting that the

trial court clarify the grounds upon which it relied to grant the Motion to Dismiss; and

requesting that the trial court order dismissal of the Plaintiffs' claims against the Fictitious

Defendants. The trial court denied the motion. The Plaintiffs then voluntarily dismissed

the pending claims against "all remaining Defendants [the Fictitious Defendants] pursuant

to Rule 67.02(a)" on June 1, 2019.

         On June 24, 2019, the Plaintiffs filed another motion to asking the trial court to

denominate its February 11, 2019 order as a judgment. The trial court did so, entering an

amended order and judgment ("Judgment") on July 24, 2019, that provided "the Order

dismissing the case as against Ken Logan and Quentin Kearney shall be considered a Final

Judgment within the meaning of Rule 74.01(a) as of the date of this Order."5

         On August 28, 2019, the trial court entered a second order and judgment ("Amended

Judgment") in which it ordered that "all claims of the Plaintiffs are hereby dismissed, with

prejudice, against all Defendants and therefore this Second Amended Order and Final

Judgment shall be considered a Final Judgment within the meaning of Rule 74.01(a), as of

the date of this Order." (Emphasis added.)

         The Plaintiffs filed notices of appeal from the Judgment and from the Amended

Judgment.



         5
         Neither the February 11, 2019 order dismissing the Named Defendants, nor the July 24, 2019 Judgment
denominating the earlier order as a judgment, specified whether the dismissal was with or without prejudice. "Any
involuntary dismissal shall be without prejudice unless the court in its order for dismissal shall otherwise specify."
Rule 67.03.

                                                           7
    The Trial Court Did Not Have Jurisdiction to Enter the Amended Judgment

       The Plaintiffs filed two notices of appeal because the trial court issued two

judgments, the Judgment on July 24, 2019, and the Amended Judgment thirty-five days

later, on August 28, 2019.

       Rule 75.01 provides that the trial court retains control over judgments for thirty days

and may amend or modify its judgment within that time. If no timely authorized after-trial

motion is filed, the judgment becomes final thirty days after its entry. Rule 81.05. The

trial court loses jurisdiction over a case when the judgment entered in the case becomes

final. State ex rel. AJKJ, Inc. v. Hellmann, 574 S.W.3d 239, 242 (Mo. banc 2019).

       When the trial court entered the Judgment on July 24, 2019, the trial court had

already dismissed the Plaintiffs' claims against the Named Defendants (by virtue of the

February 11, 2019 order) and the Plaintiffs had already voluntarily dismissed all of claims

against the Fictitious Defendants (as of the dismissal filed on June 1, 2019). The Judgment

entered by the trial court on July 24, 2019, complied with Rule 74.01(a), which requires "a

writing signed by the judge and denominated 'judgment' or 'decree.'" The Judgment

disposed of all claims against all parties. Neither the Plaintiffs nor the Named Defendants

filed any motions after the entry of the Judgment. Because no authorized post-judgment

motions were filed, the Judgment became final thirty days after its entry. At that point, the

trial court lost jurisdiction over the case.

       The trial court was thus without jurisdiction to enter the Amended Judgment on

August 28, 2019. The Amended Judgment, which purported to convert the dismissal of

the Plaintiffs' claims against the Named Defendants to a dismissal with prejudice, is of no

                                               8
force or effect. We nonetheless have jurisdiction to entertain the Plaintiffs' appeal from

the Amended Judgment. Estate of Shaw, 256 S.W.3d 72, 77 (Mo. banc 2008). We find

the Amended Judgment is of no force or effect. Pursuant to our authority under Rule 84.14,

the Amended Judgment is hereby vacated. That leaves only the Plaintiffs' appeal from the

Judgment to be determined.6

    Appeal from the Judgment's Dismissal of Claims Without Prejudice Is Proper

        Neither the February 11, 2019 order dismissing the Plaintiffs' claims against the

Named Defendants, nor the Judgment denominating the order a judgment, indicated that

the dismissal was with prejudice. Pursuant to Rule 67.03, the trial court's involuntary

dismissal of the Plaintiffs' claims against the Named Defendants is thus deemed to be

without prejudice.

        While "[t]he general rule is that dismissal without prejudice is not a final judgment

and, therefore, is not appealable," "[a]n exception to this general rule applies . . . where the

dismissal has the practical effect of terminating the litigation in the form cast by the

plaintiff." Eckel v. Eckel, 540 S.W.3d 476, 482 n.16 (Mo. App. W.D. 2018) (quoting

McGaw v. McGaw, 468 S.W.3d 435, 439 n.5 (Mo. App. W.D. 2015)). We have previously

concluded that both a dismissal for failure to state a claim and a dismissal for expiration of

the statute of limitations effectively bar the plaintiff from refiling the action. Id. (citing

McGaw, 468 S.W.3d at 439 n.5; Basye v. Fayette R-III Dist. Bd. of Educ., 150 S.W.3d 111,


         6
           We do not fault the Plaintiffs for filing separate notices of appeal for the Judgment and the Amended
Judgment because doing so was consistent with our declaration of best practices in Southside Ventures, LLC v. La
Crosse Lumber Co., 574 S.W.3d 771, 782 (Mo. App. W.D. 2019) ("[B]est practices suggest that, any time a trial
court enters an amended judgment, a party seeking to appeal should file a new notice of appeal from the amended
judgment rather than relying on a notice of appeal filed pursuant to an original judgment.").

                                                        9
115 (Mo. App. W.D. 2004)). Both bases for dismissal asserted in the Motion to Dismiss

fall within these exceptions. The Judgment was therefore final for purposes of appeal,

notwithstanding that it dismissed the Plaintiffs' claims against the Named Defendants

without prejudice.

                               Analysis of the Plaintiffs' Points on Appeal

         The Plaintiffs assert two points on appeal, both of which claim error in granting the

Motion to Dismiss. The Plaintiffs' first point argues that the trial court erred in determining

that the statute of limitations barred the Plaintiffs' claims against the Named Defendants.

The Plaintiffs' second point argues that the trial court erred in dismissing the Plaintiffs'

claims against the Named Defendants without permitting the Plaintiffs time to engage in

discovery to determine whether the Named Defendants were aware of the Original Petition

as to permit the filing of the Amended Petition to relate back to the filing of the Original

Petition pursuant to Rule 55.33(c).7


          7
            The Plaintiffs' first point on appeal states: "Whether the trial court erred in dismissing the claims against [the
Named Defendants] based on statute of limitations grounds, an issue preserved for appeal and de novo review with
the filing of appellant's suggestions in opposition to the [Named Defendants'] Motion to Dismiss." [Appellants' Brief,
p. 5] This point relied on does not comply with Rule 84.04(d)(1) in that it does not state the legal reasons for the
Plaintiffs' claim of reversible error and does not explain, in a summary fashion, why those legal reasons support a
claim of reversible error. Further, the argument following the Plaintiffs' first point relied on asserts that none of the
Plaintiffs' six claims against the Named Defendants were barred by the statute of limitations, rendering the point on
appeal necessarily multifarious and therefore in contravention of Rule 84.04(d). Griffitts v. Old Republic Ins. Co.,
550 S.W.3d 474, 478 n.6 (Mo. banc 2018).
          The Plaintiffs' second point on appeal and argument supporting the second point on appeal similarly suffer
from Rule 84.04 deficiencies. The second point on appeal states: "Whether the trial court erred in dismissing any
claims without allowing appellants the right to engage in discovery to find out whether [the Named Defendants] had
received notice of and were aware of the lawsuit, an issue preserved for appeal and de novo review with the filing of
appellant's suggestions in opposition to the [Named Defendants'] Motion to Dismiss." [Appellants' Brief, pp. 8-9]
This point relied on, unlike the first, identifies that the trial court erred in failing to allow discovery before dismissing
the Plaintiffs' claims against the Named Defendant, but it fails to explain why the failure to allow discovery was
reversible error in violation of Rule 84.04(d)(1). The argument explains, however, that discovery was necessary to
determine whether the Named Defendant had notice of the lawsuit so that the Amended Petition related back to the
date the Original Petition was filed.
          Failure to comply with the briefing rules justifies dismissal of the appeal. KC Air Cargo Servs., Inc. v. City
of Kansas City, 581 S.W.3d 685, 690 n.2 (Mo. App. W.D. 2019). However, we prefer to dispose of an appeal on the

                                                             10
Standard of Review

         We review the trial court's decision to grant a motion to dismiss de novo. Tuttle v.

Dobbs Tire & Auto Ctrs., Inc., 590 S.W.3d 307, 310 (Mo. banc 2019). Where, as here, the

trial court did not specify the basis for its decision to grant the Motion to Dismiss, we

presume the dismissal was on a basis set forth in the motion to dismiss, and we will affirm

the dismissal if it can be supported on any basis set forth in the motion to dismiss. Id.

Here, the Motion to Dismiss argued two bases for dismissal of the Amended Petition: (i)

that the Amended Petition failed to state a claim against the Named Defendants; and (ii)

that the two-year statute of limitations had expired.

         "A motion to dismiss for failure to state a claim on which relief can be granted is

solely a test of the adequacy of the petition." Id. (quoting Cope v. Parson, 570 S.W.3d

579, 583 (Mo. banc 2019)). "We review the petition 'to determine if the plaintiff has

alleged facts that meet the elements of a recognized cause of action or of a cause that might

be adopted in that case.'" McDonald v. Chamber of Commerce of Independence, 581

S.W.3d 110, 114 (Mo. App. W.D. 2019) (quoting Avery Contracting, LLC v. Niehaus, 492

S.W.3d 159, 162 (Mo. banc 2016)). For the purpose of determining whether dismissal is

appropriate, we assume all of the petition's averments are true and liberally grant all

reasonable inferences drawn therefrom. Eckel, 540 S.W.3d at 482. "With respect to the




merits if the argument on appeal is easily understandable. Id. Here, it is clear that the Plaintiffs are arguing on
appeal that the trial court incorrectly dismissed the Amended Petition's claims against the Named Defendants
because the claims were not barred by the statute of limitations in that only two of the claims were subject to the
two-year statute of limitations and the Plaintiffs should have been afforded the opportunity to conduct to discovery
to uncover evidence that would have demonstrated the amendments related back to the Original Petition. As such,
we have elected to consider the merits of the Plaintiffs' points on appeal ex gratia.

                                                         11
timeliness of claims, '[i]f it clearly appears on the face of the petition that the cause of

action is barred by the applicable statute of limitations, the motion to dismiss is properly

sustained.'" Id. (quoting Armistead v. A.L.W. Grp., 60 S.W.3d 25, 26 (Mo. App. E.D.

2001)).

It is not fatal to the Plaintiffs' appeal that the points relied on fail to challenge whether
the Amended Petition stated a claim

        The Named Defendants argue that because the Plaintiffs have not challenged

whether the allegations set forth in the Amended Petition were sufficient to state a claim,

we are required as a matter of law to affirm the Judgment and to dismiss this appeal, as that

could have been the basis for the trial court's grant of the Motion to Dismiss. The Named

Defendants are correct that an appellant's failure to challenge on appeal each ground that

could support affirming a judgment is fatal to the appeal. STRCUE, Inc. v. Potts, 386

S.W.3d 214, 219 (Mo. App. W.D. 2012) (holding that failure to challenge each basis that

could support affirming judgment appealed from is fatal to appeal).

        This settled principle has no application here, however. The assertion in the Motion

to Dismiss that the Amended Petition failed to state a claim against the Named Defendants

was premised entirely on Hartman's deposition testimony in an unrelated matter. The

Reply Suggestions filed by the Named Defendants also relied on material outside the four

corners of the Amended Petition to support this basis for dismissal, namely affidavits from

Logan and Kearney disputing factual allegations in the Amended Petition.8 The Motion to


        8
         The Reply Suggestions expand the Named Defendants' argument that the Amended Petition fails to state a
claim against the Named Defendants for which relief could be granted beyond focusing on Hartman's deposition
testimony. The Reply Suggestions also assert that paragraph 27 of the Amended Petition is insufficient to establish
"each element of Plaintiffs' prima facie case for every claim in the Amended Petition" because "[e]ven if Plaintiffs

                                                        12
Dismiss did not assert that the factual allegations in the Amended Petition were insufficient

to state a claim. Instead, the Motion to Dismiss challenged whether certain factual

allegations in the Amended Petition were supported by evidence and/or should be believed.

As noted, "'[a] motion to dismiss for failure to state a claim on which relief can be granted

is solely a test of the adequacy of the petition.'" Tuttle, 590 S.W.3d at 310 (quoting Cope,

570 S.W.3d at 583).

        Rule 55.27(a) provides that, "[i]f . . . matters outside the pleadings are presented to

and not excluded by the court" in a motion to dismiss, "the motion shall be treated as one

for summary judgment and disposed of as provided in Rule 74.04" so long as that "[a]ll

parties [are] given reasonable opportunity to present all material made pertinent to such a

motion by Rule 74.04." In Naylor Senior Citizens Housing, LP v. Sides Construction Co.,

our Supreme Court clarified that, when considering a motion to dismiss, the trial court may

only rely on materials outside the four corners of the petition if the trial court converts the

motion to dismiss into a motion for summary judgment and provides notice that it is doing

so. 423 S.W.3d 238, 241 n.1 (Mo. banc 2014). "If the trial court gives no such notice and

the judgment expressly grants the motion to dismiss, this is an affirmative statement that

the trial court did not convert the motion and, more importantly, that it did not consider

matters outside the pleadings." Id. We "are bound by such statements and, as a result,


could tie an IP address to a physical location where the Defendants conduct a multitude of businesses, one cannot
make the logical leap that it was these Defendants who made the alleged defamatory statements." The Named
Defendants' brief argues the same, asserting that Missouri fact pleading requirements require more specific pleading
than as is set forth in the Amended Petition, including paragraph 27. This particular argument was not set forth in
the Motion to Dismiss. We are not permitted to affirm the grant of the Motion to Dismiss on a ground not stated
therein. Eckel, 540 S.W.3d at 485 n.22; cf. Unifund CCR Partners v. Kinnamon, 384 S.W.3d 703, 711 (Mo. App.
E.D. 2012) (finding an argument that was raised at oral argument on the motion to vacate a default judgment and in
a post-argument reply was belated and could not justify the conclusion that the default judgment was void).

                                                        13
cannot consider extraneous submissions or review decisions the trial court did not make."

Id.

       In this case, the Motion to Dismiss made assertions that could serve as a basis for

dismissal under Rule 55.27(a) because they were limited to a review of the allegations in

the Amended Petition (the statute of limitations argument), and assertions that could serve

as a basis for granting summary judgment under Rule 74.04 because they relied on matters

beyond the four corners of the Amended Petition (the failure to state a claim argument).

However, the trial court is deemed to have granted either a Rule 55.27(a) motion to dismiss

or a Rule 74.04 motion for summary judgment. Underwood v. Kahala, LLC, 554 S.W.3d

485, 494 (Mo. App. S.D. 2018). "The record for our review relates to one form of judgment

or the other. There is no middle ground." Id.

       Here, there is no indication in the Judgment that the trial court relied on matters

outside of the pleadings to grant the Motion to Dismiss. The Judgment simply states that

the February 11, 2019 order dismissing the Plaintiffs' claims against the Named Defendants

"shall be considered a Final Judgment within the meaning of Rule 74.01(a)."               The

February 11, 2019 order granted the Motion to Dismiss without further explanation. There

is also nothing in the record to support a finding that the trial court intended to convert the

Motion to Dismiss to a motion for summary judgment or gave notice that it would be doing

so. In fact, the Plaintiffs' Suggestions in Opposition to the Motion to Dismiss expressly

highlighted that it was improper to consider the deposition transcript attached to the Motion

to Dismiss, and advised the trial court that it should constrain itself to consideration of the

allegations in the Amended Petition in reviewing the Motion to Dismiss. We conclude,

                                              14
therefore, the trial court did not convert the Motion to Dismiss to a motion for summary

judgment.

       As such, the only basis for dismissal set forth in the Motion to Dismiss that could

have been relied on by the trial court to dismiss the Amended Petition is the Named

Defendants' claim regarding expiration of the two-year statute of limitations.            The

Plaintiffs' points on appeal address this basis for dismissal. The Plaintiffs were not required

to address whether the Amended Petition stated a claim, as that basis for dismissal could

not have served as a basis for the Judgment as a matter of law.

The two-year statute of limitations referred to in the Motion to Dismiss did not apply to
all of the claims asserted in the Amended Petition

       The Plaintiffs' first point on appeal alleges that it was error to dismiss all of the

claims in the Amended Petition based on the expiration of a two-year statute of limitations.

       Expiration of the statute of limitations is an affirmative defense, and the burden of

proof to establish the defense rests with the Named Defendants, not the Plaintiffs. Rule

55.08; Eckel, 540 S.W.3d at 486. "When an affirmative defense is asserted, such as a

statute of limitation, the petition may not be dismissed unless it clearly establishes on its

face and without exception that it is barred." State ex rel. Halsey v. Phillips, 576 S.W.3d

177, 180 (Mo. banc 2019) (quoting Sheehan v. Sheehan, 901 S.W.2d 57, 59 (Mo. banc

1995)). "Accordingly, only in the rare case in which the face of a petition demonstrates a

claim is time-barred should a court sustain a motion to dismiss on the ground the statute of

limitations has run." Id.




                                              15
         The Amended Petition sets forth six claims against the Named Defendants:

defamation, tortious interference with prospective economic advantage or business

expectancy, negligence, prima facie tort, injurious falsehood, and a request for injunctive

relief. The Motion to Dismiss alleged that the two-year statute of limitations described in

section 516.140 barred the Plaintiffs' claims for defamation and injurious falsehood.

         As a matter of law, the Judgment should not have dismissed the Plaintiffs' claims

for tortious interference with prospective economic advantage or business expectancy,

negligence, prima facie tort, or injunctive relief because the Motion to Dismiss did not

argue that the two-year statute of limitations set forth in section 516.140 applied to these

claims.

         Moreover, it is uncontested that the Plaintiffs' claims for tortious interference with

prospective economic advantage or business expectancy, negligence, and prima facie tort

are not subject to the two-year statute of limitations set forth in section 516.140, and are

instead subject to the five-year statute of limitations set forth is section 516.120.9 The

Amended Petition, filed October 18, 2017, alleges that the internet postings in question

were published on or about April 28-29, 2015 and in advance of one of the Plaintiffs'

seminars in Memphis, Tennessee on May 2-3, 2015. The Plaintiffs' claims of tortious



         9
           The Plaintiffs' request for injunctive relief in the Amended Petition is not a separate claim, per se, but is
instead a request for a form of equitable relief assuming the basis for an asserted claim is established. In fact, as
pleaded, the request for injunctive relief in the Amended Petition was sought in connection with the claims for
defamation and tortious interference, and sought to "enjoin [the Named Defendants] from creating and publishing
further false, defamatory and misleading statements about [the] Plaintiffs." The request for injunctive relief will be
controlled by the statute of limitations applicable to the underlying claims for which that relief is sought. See Hall-
Bouldin v. Bouldin, 497 S.W.3d 385, 390 (Mo. App. E.D. 2016) (applying the statute of limitations claim to a claim
for equitable relief that was based on the underlying claim of fraud). Here, that will be two years insofar as the
defamation claim, and five years insofar as the tortious interference claim.

                                                          16
interference with prospective economic advantage of business expectancy, negligence, and

prima facie tort were unquestionably filed within five years of these dates.

       The trial court's reliance on an inapplicable two-year statute of limitations to dismiss

the Plaintiffs' claims against the Named Defendants for tortious interference with

prospective economic advantage of business expectancy, negligence, and prima facie tort,

and the associated request for equitable relief in the form of an injunction, was legally

erroneous.

       With respect to the claims for defamation and injurious falsehood as to which the

two-year statute of limitations set forth in section 516.140 applies, the Amended Petition

was filed on October 18, 2017, more than two years after the internet postings in question

were allegedly published in late April 2015 and early May 2015. However, section 516.100

directs that a cause of action begins to accrue "when the damage resulting therefrom is

sustained and is capable of ascertainment." As such, Missouri courts have long held that

that "[t]he statute of limitations began to run . . . not when the defamatory statement was

made, but when damages were ascertained." Thurston v. Ballinger, 884 S.W.2d 22, 26

(Mo. App. W.D. 1994).

       The Plaintiffs assert that it was error to dismiss the defamation and injurious

falsehood claims because additional evidence was necessary to determine when they

became aware of each defamatory posting; when their damages were capable of

ascertainment; whether additional types of damage flowed from the posting(s); and

whether factors outside of their control prevented them from learning of the legal wrong.

[Appellants' Brief, p. 7] The Plaintiffs' arguments overlook, however, that the Amended

                                              17
Petition addresses these questions, and within its four corners provides support for the

conclusion that the two-year statute of limitations applicable to the claims for defamation

and injurious falsehood accrued and expired before the Amended Petition was filed.

         The Amended Petition includes four exhibits. "An exhibit to a pleading is a part

thereof for all purposes." Rule 55.12. Exhibit A is a copy of internet forum posts about

the Plaintiffs to which Hartman responded and about which the Amended Petition

complains. Hartman's responses were dated April 28, but the year is not indicated. Exhibit

B is comprised of screenshots of Memphis Craigslist postings about Hartman. The

screenshots indicate that they were taken on Sunday, May 3. In 2015, May 3 fell on a

Sunday.10 Exhibits C and D are screenshots of a Yelp review of the Plaintiffs and a forum

posting about the Yelp posting. Those screenshots indicate that they were taken on

Wednesday, April 29. April 29 fell on a Wednesday in 2015.

         These exhibits establish that Hartman, the principal owner and officer of PPIN, was

aware of the allegedly defamatory internet postings on April 28, 2015, April 29, 2015, and

May 3, 2015. As such, the Amended Petition establishes that the causes of action for

defamation and injurious falsehood accrued as of these dates because the Plaintiffs were

aware of the defamatory statements and damages were capable of ascertainment. These

dates fall more than two years before the Amended Petition was filed. It was not error,

therefore, for the trial court to dismiss the claims for defamation and injurious falsehood in




         10
         Courts may take judicial notice of calendars, including the day of the week on which a particular date fell.
Cornerstone Mortg., Inc. v. Ponzar, 254 S.W.3d 221, 228 n.7 (Mo. App. E.D. 2008).

                                                         18
the Amended Petition on the basis of the two-year statute of limitations set forth in section

516.140.

       Point One on appeal is granted in part and denied in part.

The relation back doctrine does not apply to the Amended Petition's addition of the
Named Defendants

       Plaintiffs' second point on appeal argues that even if some claims in the Amended

Petition were time barred, they would not be barred if the Amended Petition is deemed to

relate back to the date of filing of the Original Petition pursuant to Rule 55.33(c), and that

as a result, it was error to dismiss the Plaintiffs' claims against the Named Defendants

without allowing discovery to determine whether the Named Defendants were aware of the

Original Petition.

       Rule 55.33(c) provides:

       Whenever the claim or defense asserted in the amended pleading arose out
       of the conduct, transaction, or occurrence set forth or attempted to be set forth
       in the original pleading, the amendment relates back to the date of the original
       pleading. An amendment changing the party against whom a claim is
       asserted relates back if the foregoing provision is satisfied and within the
       period provided by law for commencing the action against the party and
       serving notice of the action, the party to be brought in by amendment: (1) has
       received such notice of the institution of the action as will not prejudice the
       party in maintaining the party's defense on the merits and (2) knew or should
       have known that, but for a mistake concerning the identity of the proper
       party, the action would have been brought against the party.

(Emphasis added.) "Rule 55.33(c) is '[the] remedy for a mistake in identity, and the remedy

is a change in party.'" Kingsley v. McDonald, 432 S.W.3d 266, 270 (Mo. App. W.D. 2014)

(quoting State ex rel. Hilker v. Sweeney, 877 S.W.2d 624, 628 (Mo. banc 1994)). In other

words, Rule 55.33(c) applies if the "plaintiff . . . made a mistake in selecting the proper


                                              19
party to sue, i.e., the plaintiff must have brought an action against the wrong party." Id.

(quoting State ex rel. Holzum v. Schneider, 342 S.W.3d 313, 316 (Mo. banc 2011)). Rule

55.33(c) does not apply, however, "where the plaintiff seeks to add an entirely new

defendant to the case," as the "'[t]he law distinguishes between the substitution of parties'-

-where relation back may be available--'and the addition of parties,' where it is not." Id. at

272-73 (quoting Johnson v. Delmar Gardens W., Inc., 335 S.W.3d 83, 88 (Mo. App. E.D.

2011)).

       Here, the Original Petition named John Doe, individually, and Does 1 through 100

as defendants. The Amended Petition also named John Doe, individually and Does 1

through 100 as defendants. The Amended Petition did not add Logan or Kearney as

defendants to the case caption, but merely added additional factual allegations in the

pleading which specifically addressed Logan and Kearney. In all material respects, the

allegations in the Amended Petition addressing the conduct of the "Doe" defendants

remained unchanged from the Original Petition. The Amended Petition did not substitute

Logan and Kearney for any of the previously named Fictitious Defendants, and instead

added Logan and Kearney as additional defendants. As such, the Amended Petition added

new party-defendants after the expiration of the statute of limitations, and the relation back

doctrine set forth in Rule 55.33(c) is not applicable. See, e.g., Schultz by Schultz v.

Romanace, 906 S.W.2d 393, 396 (Mo. App. S.D. 1995) (holding that when plaintiff filed

amended petition and named specific, new defendants, but did not substitute them for

previously named "Doe" defendants, the amended petition added new parties, and was not

eligible for relation back); cf. State ex rel. Holzum, 342 S.W.3d at 315-16 (where court

                                             20
examined the specificity of the allegations in original petition naming "Doe" defendants to

see if identify of person being referred to could be ascertained as to permit relation back,

but only after noting that the amended petition expressly substituted the newly named

defendants for previously named "Doe" defendants); Maddux v. Gardner, 192 S.W.2d 14,

17-18 (Mo. App. 1945) (holding that relation back applied where original petition named

"Doe" defendants and identified them as the engineer and the fireman who were on an

identified train that ran over the decedent because the later filed amended petition

substituted the named engineer and fireman for the previously named "Doe" defendants).

       Additional time to conduct discovery to determine whether the Named Defendants

were aware of the Original Petition would not have aided the Plaintiffs in light of the fact

the Amended Petition added new defendants and did not substitute those newly added

defendants for previously named "Doe" defendants.

       Point Two on appeal is denied.

                                        Conclusion

       The Plaintiffs' appeal from the Amended Judgment entered by the trial court on

August 28, 2019, is unnecessary because the Amended Judgment was entered after the trial

court lost jurisdiction over this case. The Amended Judgment is vacated pursuant to our

authority under Rule 84.14. The trial court's Judgment entered on July 24, 2019, is affirmed

in part and reversed and remanded in part. The Judgment is affirmed insofar as it granted

the Motion to Dismiss the claims in the Amended Petition for defamation and injurious

falsehood. The Judgment is reversed insofar as it granted the Motion to Dismiss the claims

in the Amended Petition for interference with prospective economic advantage or business

                                            21
expectancy, negligence, and prima facie tort, and any related request for injunctive relief.

This matter is remanded to the trial court for further proceedings consistent with this

Opinion.



                                          __________________________________
                                          Cynthia L. Martin, Judge

All concur




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