                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 07-3095
                                    ___________

Richard D. Percefull,               *
                                    *
            Appellant,              *
                                    * Appeal from the United States
      v.                            * District Court for the
                                    * Western District of Arkansas.
Chris Claybaker, Mayor of Camden,   *
Arkansas,                           * [UNPUBLISHED]
                                    *
            Appellee.               *
                               ___________

                              Submitted: November 20, 2008
                                 Filed: November 25, 2008
                                  ___________

Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.
                           ___________

PER CURIAM.

      Richard Percefull appeals the district court’s adverse grant of summary
judgment in his 42 U.S.C. § 1983 action. The district court concluded that summary
judgment was warranted because the complaint was barred by res judicata. Having
conducted careful de novo review, see Rouse v. Benson, 193 F.3d 936, 939 (8th Cir.
1999) (standard of review), we conclude that the complaint is not res judicata barred,
and therefore, we vacate the district court’s order and remand for further proceedings.
       The district court concluded that the instant complaint was barred by res
judicata because Percefull had filed a similar complaint against Chris Claybaker in
Arkansas state court, and the complaint was dismissed under Arkansas Rule of Civil
Procedure 12(b)(6) for failure to state facts upon which relief could be granted. Under
Arkansas law, see Lommen v. City of East Grand Forks, 97 F.3d 272, 274 (8th Cir.
1996) (federal court implements preclusion rules of state from which judgment
originated), one requirement for the application of res judicata is that the first suit
resulted in a final judgment on the merits, see Winkler v. Bethell, 210 S.W.3d 117,
122 (Ark. 2005). Because the prior state court complaint was expressly dismissed
without prejudice, we conclude that it was not a final judgment on the merits for
purposes of res judicata. See Sluder v. Steak & Ale of Little Rock, Inc., 245 S.W.3d
115, 118 (Ark. 2006) (when complaint is dismissed under Rule 12(b)(6), dismissal is
without prejudice; plaintiff may plead further or may appeal, but if plaintiff chooses
to appeal, then he waives right to plead further and complaint will be dismissed with
prejudice).

       We decline to consider Claybaker’s alternative grounds for affirming--he argues
that the claims at issue lack merit--because the district court declined to address the
merits, and the record reveals disputed factual issues that may affect review. See
Schweiss v. Chrysler Motors Corp., 922 F.2d 473, 476 (8th Cir. 1990) (appeals court
might not affirm on theory not addressed by district court in certain situations, such
as where there are factual questions still to be resolved, or where appeals court would
benefit from having district court decide issue in first instance).

      Accordingly, we reverse and remand for further proceedings.
                     ______________________________




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