         IN THE MISSOURI COURT OF APPEALS
                 WESTERN DISTRICT
LARONDA PHOX,                                )
                                             )
               Appellant,                    )
                                             )
vs.                                          )      WD78242
                                             )
JOANN C. BOES, ET AL.,                       )      Opinion filed: February 23, 2016
                                             )
               Respondent.                   )

      APPEAL FROM THE CIRCUIT COURT OF JACKSON COUNTY, MISSOURI
               THE HONORABLE S. MARGENE BURNETT, JUDGE

                 Before Division One: Lisa White Hardwick, Presiding Judge,
                      Victor C. Howard, Judge and Gary D. Witt, Judge


       LaRonda Phox appeals the judgment of the trial court dismissing without prejudice her

pro se complaint against Joann Boes for failure to state a cause of action. Ms. Phox asserts that

the trial court erred in granting defendant Joann Boes’s motion to dismiss. Finding that the trial

court's judgment does not constitute a final judgment for purposes of appeal, this Court dismisses

the appeal.

                             Factual and Procedural Background

       According to the trial court’s judgment granting Ms. Boes’s motion to dismiss, the facts

upon which Ms. Phox’s claims are based were not articulated in the pleadings, and were only

revealed to the court through her testimony at oral argument. Ms. Phox testified that she
obtained a car title loan from one or more of the defendants, and the automobile securing the

loan was repossessed, at which time she had not paid the loan amount in full.

       The trial court found that “even with substantial effort to construe the pleadings in a light

most favorable to Plaintiff, it is unclear what facts are alleged to support any of the named causes

of action.” The court further contemplated that even if the facts to which she testified at the

hearing could possibly support a cause of action for wrongful repossession, Ms. Phox would not

be able to prevail on the claim, as she admittedly was in default on the loan at the time of

repossession. The trial court concluded that “[a] close examination of Plaintiff’s pleadings

establishes that there has not been a viable cause of action [pled], and, therefore, Defendant’s

Motion must be GRANTED.” This appeal by Ms. Phox followed.

                                       Standard of Review

       Our review of the trial court's judgment of dismissal is de novo. Lynch v. Lynch, 260

S.W.3d 834, 836 (Mo. banc 2008). “As a preliminary issue, however, a reviewing court has a

duty to determine its jurisdiction sua sponte.” Cramer v. Smoot, 291 S.W.3d 337, 338 (Mo. App.

S.D. 2009). “An appeal will lie only from a final judgment disposing of all issues and all parties,

leaving nothing for future consideration. Without a final judgment, an appellate court lacks

jurisdiction, and the appeal must be dismissed.” Id. at 339 (internal citations and quotations

omitted).

                                            Discussion

       The trial court’s order of June 26, 2014, indicates it dismissed the cause without

prejudice. “Ordinarily, when an action is dismissed without prejudice, a plaintiff may cure the

dismissal by filing another suit in the same court.” Id. (quoting Osuji v. Mo. Dept. of Soc. Servs.,

Div. of Family Servs., 34 S.W.3d 251, 253 (Mo. App. E.D. 2000)). Thus, generally a dismissal



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without prejudice is not a final judgment and, therefore, is not appealable. Id. (citing State ex rel.

State of Ill. v. Jones, 920 S.W.2d 116, 117 (Mo. App. E.D. 1996).

       In certain situations, however, such dismissals may effectively “preclude a party from

bringing another action for the same cause and may be res judicata of what the judgment actually

decided.” Id. (quoting Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo. App. E.D. 2000)).

Such exceptions include “decisions that would effect a practical termination of the litigation in

the ‘form cast’ or in the plaintiff's forum of choice, as well as situations in which refiling of the

petition at that time would have been a futile act.” Id. (internal citation and quotation omitted).

As such, “dismissals without prejudice have been held appealable in such cases where the

dismissal was based on statutes of limitations, theories of estoppel, a plaintiff's lack of standing,

failure of the petition to state a claim where the plaintiff chose not to plead further, failure of a

plaintiff in a medical malpractice action to file the health care provider affidavit and the

plaintiff's claims not being covered by the statute upon which the petition was based.” Id.

(quoting Doe, 13 S.W.3d at 676 (citations omitted)). The common factor among these situations

“was that the plaintiffs could not maintain their actions in the court where the action was filed if

the reason for dismissal was proper.” Id.

       None of the recognized exceptions to the general rule apply in Ms. Phox’s case. The

effect of the dismissal in this case was not to dismiss or bar Ms. Phox’s claims, but rather to

dismiss the amended petition as it was filed. “A dismissal without prejudice that a plaintiff may

cure by filing another petition in the same court is not a final judgment from which an appeal

may be taken.” Id. at 340 (citing Turnbow v. Southern Ry. Co., 768 S.W.2d 556, 558 (Mo. banc

1989)). The order dismissing Ms. Phox’s complaint did not have the effect of dismissing her

action, but merely dismissed her amended petition as filed, and such a judgment is not



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appealable as it does not dispose of all the parties and claims. Id. (citing Mahoney v. Doerhoff

Surgical Servs., 807 S.W.2d 503, 506 (Mo. banc 1991); Nicholson v. Nicholson, 685 S.W.2d

588, 589 (Mo. App. E.D. 1985)). A refiling of the petition, with additional facts to further

support the premises of Ms. Phox’s assertions, would not be futile and is not precluded by the

trial court's dismissal in this case. Id. Where, as here, the trial court's dismissal of a petition

does not constitute a final judgment from which an appeal can be taken, this Court lacks

statutory authority to consider an appeal and must dismiss it. Id.

       Ms. Phox’s appeal is dismissed.




                                             __________________________________________
                                             VICTOR C. HOWARD, JUDGE

All concur.




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