                                              In the
                           Missouri Court of Appeals
                                      Western District

                                                    
 STATE EX REL KANSAS CITY,                          
 MISSOURI SCHOOL DISTRICT,                             WD79978
                    Relator,                           OPINION FILED:
                                                    
 v.                                                    DECEMBER 13, 2016
                                                    
 THE HONORABLE PATRICK                              
 WILLIAM CAMPBELL,                                  
                                                    
                  Respondent.                       



                                   Original Writ of Prohibition

Before Writ Division: Anthony Rex Gabbert, Presiding Judge, Victor Carl Howard, Judge,
                                  Alok Ahuja, Judge



      The Kansas City, Missouri School District (Relator) filed a petition for a writ of prohibition

requesting that this Court issue a writ directing Jackson County Circuit Judge, Patrick Campbell

(Respondent) to vacate the order allowing Anthony L. Moore (Plaintiff) to file a second amended

petition. Relator offers two points in support of the writ. In its first point, Relator argues that

Plaintiff abandoned a contract claim for liability by both failing to present any evidence on the

claim and failing to request a jury instruction on the claim at trial. In Relator’s second point, it

contends that the trial court improperly granted Plaintiff’s second motion for leave to amend

because the trial court lacked jurisdiction to grant the motion. Relator argues that the trial court’s
final judgment on the jury-tried claim operated as a final judgment on all claims, including the

claim which plaintiff asked for leave to amend and that the trial court’s final judgment cured any

deficiencies stemming from the lack of a written order memorializing the court’s prior oral

dismissal of the count the trial court later granted Plaintiff leave to amend.

                                        Factual Background

     Plaintiff Anthony L. Moore filed an action against Relator Kansas City, Missouri School

District (KCMSD) on February 1, 2013. On June 10, 2013, Plaintiff filed his first amended

petition as a matter of right before Relator answered. The first amended petition included a

claim for breach of the 2011 employment contract Plaintiff entered into with Relator (Count II).

The Plaintiff’s petition included four different claims, all arising from and based on the same

underlying facts−Plaintiff’s employment and subsequent termination from his position with

KCMSD. Prior to trial, Plaintiff stipulated to the dismissal of Counts III and IV. On October 19,

2015, the court granted Relator’s motion for summary judgment on Count II. Despite orally

granting the motion on record, no official order or judgment was signed by the court declaring

the grant of summary judgment in Relator’s favor on Count II.

     Only Count I proceeded to a jury trial on October 26, 2015 and a verdict for Relator was

entered by the jury. As to Count II, Plaintiff did not attempt to introduce any evidence, request

any jury instructions, nor during the trial and before the close of all evidence request the Court to

reconsider its earlier ruling as to Count II.   The trial court entered judgment for the Relator on

November 23, 2015. On December 23, 2015, Plaintiff filed his motion for new trial and a

motion for leave to amend the petition in hopes of amending the previously disposed of Count II,

but based upon a 2010 employment contract (rather than a 2011 employment contract which was

the basis of the original claim). Relator filed its response on January 14, 2016. At a hearing held

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on March 24, 2016, the trial court heard arguments on the motion from the parties. During this

hearing, the trial court noted, “[w]ell, I did dispose of the contract claim, but you are asking for

leave to amend to add a new contract claim.” The trial court granted Plaintiff’s motion for leave

to amend and denied Plaintiff’s motion for a new trial on April 21, 2016. More than ninety days

passed between the filing of Plaintiff’s motion for leave to amend and the trial court’s granting of

the same.

                                         Standard of Review

                 “A writ of prohibition is available: (1) to prevent a usurpation of judicial power
          when the trial court lacks authority or jurisdiction; (2) to remedy an excess of authority,
          jurisdiction, or abuse of discretion where the lower court lacks the power to act as
          intended; or (3) where a party may suffer irreparable harm if relief is not granted.” State
          ex rel. Houska v. Dickhaner, 323 S.W.3d 29, 32 (Mo. banc 2010).

     The lack of a final appealable judgment precludes appeal, and may, where appropriate

justify the extraordinary remedy of a writ. See Ndegwa v. KSSO, LLC, 371 S.W.3d 798, 799

(Mo. banc 2012).



                                           Legal Discussion

   (i)        Abandonment of The Claim.

         Plaintiff contends that because the trial court failed to properly memorialize the motion for

summary judgment granted in Relator’s favor, it was not included in the November 23, 2015

final judgment, and therefore the trial court maintains jurisdiction over the contract claim.

Relator counters that despite the lack of a formal order granting the motion for summary

judgment, because Plaintiff failed to present any evidence on the claim and failed to request jury

instruction on the claim at trial, Plaintiff abandoned Count II.



                                                   3
      A claim that was not submitted to the jury at the conclusion of the evidence is considered

abandoned. Benson Optical Co., Inc. v. Floerchinger, 810 S.W.2d 531, 536 (Mo. App. 1991).

This court would deem a plaintiff to have abandoned its claim against defendant, where plaintiff

failed to submit a verdict form pertaining to that defendant. Killion v. Bank Midwest, N.A., 987

S.W.2d 801, 808 (Mo. App. 1998). In Killion, this court declined considering the plaintiff’s tort

claim on appeal because the plaintiff failed to submit a verdict form or ask for instructions to the

jury on the claim, thereby abandoning it. This court consistently finds that theories of liability

pleaded but not submitted to the jury are abandoned. Heckadon v. CFS Enterprises, Inc., 400

S.W.3d 372, 377 (Mo. App. 2013).

       Here, Plaintiff did not present a prima facie breach of contract claim at trial. Further, he

did not request that the jury be instructed on such a claim before the case was submitted to the

jury. Although the motion for summary judgment was not properly memorialized with a written,

signed ordered by the granting judge, a contract claim arising from the same transaction or

occurrence was effectively abandoned by the plaintiff upon the failure to preserve the issue on

the record or with a jury instruction on the same. Because a breach of contract theory of liability

was not presented to the jury at trial, it was abandoned.

       Even if Count II was not abandoned by Plaintiff, this claim was effectively included in the

final judgment in favor of Relator, even despite the trial court’s failure to memorialize the

claim’s earlier disposition. We point to the recent decision of State of Missouri Ex Rel. Attorney

General Chris Koster v. Conoco Phillips, No. SC95444 (June 28, 2016) for support. Here, the

Court held that Rule 74.01 defines a final judgment as “a judgment adjudicating all claims and

the rights and liabilities of all the parties…[a]s a result, a final judgment necessarily incorporates

all prior orders or judgments that adjudicated some—but fewer than all—of the claims and rights

                                                  4
and liabilities of all the parties.” No. SC95444. The Court went on to clarify that, “[t]his is so

regardless of whether such incorporation is addressed explicitly (or implicitly) in the final

judgment itself.” Id. Plaintiff’s argument that the breach of contract claim (Count II) survives

the final judgment of Count I fails as it was included in the final judgment implicitly under Rule

74.01.



   (ii)       Lack of Jurisdiction

          A judgment issued in excess of the trial court's jurisdiction is void. In re Moreau, 161

S.W.3d 402, 405 (Mo. App. 2005). Under Rule 75.01, after a trial court enters judgment, it

retains control over the judgment for thirty days and may, after giving the parties an opportunity

to be heard and for good cause…amend its judgment within that time. Mo. R. Civ. Pro. 75.01.

The timely filing of either a motion for a new trial or an “authorized after-trial motion” extends a

trial court's jurisdiction for up to ninety days after the filing of the motion. Mo. R. Civ. Pro.

81.05. The combined effect of these post-trial motion rules “is to afford the trial court the

authority to modify its judgment for any reason for good cause within thirty days of its entry, and

the authority between the thirty-first and ninetieth day following entry of a judgment to modify

its judgment to remediate a matter raised by a party in an authorized after-trial motion.” State ex

rel. Missouri Parks Ass’n v. Missouri Dep’t of Nat. Res., 316 S.W.3d 375, 382 (Mo. App. 2010).

           Here, the trial court granted Plaintiff’s motion for leave to amend after its jurisdiction

expired. The trial court granted this after-trial motion 92 days after Plaintiff filed, and therefore,




                                                     5
its jurisdiction had expired. There is nothing in the rule language or case law to suggest that this

ninety day window is discretionary.1

        Even if the November 23, 2015 final judgment did not include the contract claim raised

in Count II of the plaintiff’s petition, the record shows that the court summarily adjudicated this

claim prior to the motion for leave to amend at issue here. On March 24, 2016, during the

hearing concerning the plaintiff’s requested leave to amend, the court stated on the record,

“[w]ell, I did dispose of the contract claim, but you are asking for leave to amend to add a new

contract claim.” (See Exhibit 15 (p. 19:1-19:3). While the court referred to the contract claim as

“new”, it defies logic to call this a new claim where it arose from the same transaction or

occurrences as the claims within the original and first amended petition, and Plaintiff has not

alleged lack of knowledge of the 2010 contract prior to the final judgment.

        Where the claim which is the subject of plaintiff’s granted motion to leave to amend was

included in the final judgment on November 23, 2015, the trial court’s jurisdiction over this

matter terminated on March 23, 2016—the 91st day after Plaintiff filed his motion for leave to

amend. Although Plaintiff’s motion for new trial was timely filed, the trial court lacked

jurisdiction to address the motion as it was denied by operation of law when more than ninety

days passed between the filing of such motion and the trial court’s granting of the motion on

April 21, 2016.

            We conclude, therefore, that not only was the contract claim abandoned by Plaintiff’s

failure to preserve the matter on the trial record, but the trial court lacked jurisdiction to grant the



        1
          Mo. R. Civ. Pro. 81.05(a)(2) states: “If a party timely files an authorized after-trial motion, the
        judgment becomes final at the earlier of the following: Ninety days from the date the last timely
        motion was filed, on which date all motions not ruled shall be deemed overruled.”

                                                           6
plaintiff’s motion for leave to amend because it was issued in excess of the court’s jurisdiction.

Hence, we make absolute our order in prohibition. The trial court shall vacate its order of April

21, 2016 granting Plaintiff’s motion for leave to amend petition for the reasons stated herein.




                                                      Anthony Rex Gabbert, Judge


All concur.




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