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Welch v. Contreras10/25/2005
Opinion Vote: AFFIRMED IN PART; REVERSED IN PART.
Howard, P.J., and Smart, J., concur.
Opinion:
Ms. Kory A. Welch appeals a circuit court judgment dismissing her case with prejudice, claiming that she neither improperly split her cause of action nor violated the pending action doctrine or section 509.290.1(8), because the parties to her Missouri action were not the same parties to a similar action previously filed in Kansas. We affirm in part and reverse in part.
In January 2003 Ms. Welch filed an action in a Kansas state court against Mr. Eli Contreras, Producers Mortgage Corporation (PMC), John Doe(s) 1-5, and a number of other defendants. The case was removed to federal court and then remanded back to state court. While the case was pending in federal court, Ms. Welch filed a first amended complaint that inadvertently omitted Mr. Contreras as a defendant. A magistrate judge refused to allow Ms. Welch to file a second amended complaint to restore Mr. Contreras as a defendant, because he had not been timely served when the case had initially been removed. Hence, he was not a party to the Kansas action when Ms. Welch filed substantially similar claims against him and PMC in May 2004 in Platte County, Missouri.
Both lawsuits arose out of alleged misconduct on the part of Mr. Contreras and other PMC employees in a mortgage refinance transaction that involved Ms. Welch and her former husband and property they owned in Kansas. Mr. Contreras, a Platte County, Missouri, resident, was a mortgage loan officer trainee for PMC. In the Missouri action, Ms. Welch sought to hold him liable for breaching his fiduciary duties as an agent and employee of PMC; in both actions she sought to hold PMC liable under respondeat superior for its employees' conduct.
The Kansas lawsuit, after the federal-based claims were dismissed, contains counts for fraud, negligence, civil conspiracy, defamation, and violation of the Kansas Consumer Protection Act. The Missouri lawsuit contains counts for fraud, negligence, civil conspiracy, defamation, and violation of the Missouri Merchandising Practices Act. Ms. Welch's plea for damages under each count in the Missouri lawsuit is linked to recovery available under this Missouri statute. The counts in the Kansas action stand alone with respect to Ms. Welch's claims for damages.
PMC and Mr. Contreras filed a motion to dismiss the Missouri lawsuit, claiming that the "pending action doctrine," section 509.290.1(8), and an impermissible splitting of the cause of action barred Ms. Welch's suit. The circuit court granted the motion, and this appeal followed. Ms. Welch claims that the doctrines which defendants invoked do not apply to cases involving different parties and that Mr. Contreras was never a party to the Kansas action because he was never served with process. Responding to her claims, defendants further contend that the doctrines of res judicata, respondeat superior , and collateral estoppel also apply to bar the Missouri litigation, because the Kansas matter was tried to a verdict on its merits, while this appeal has been pending. Because this contention refers to matters outside the legal record, we will not consider it further.
The parties state that the appropriate standard of review for the grant of a motion to dismiss is de novo and is guided by whether the petition "invokes principles of substantive law." Koger v. Hartford Life Ins. Co. , 28 S.W.3d 405, 409-10 (Mo. App. W.D. 2000). Because the disposition of defendants' motion to dismiss required the consideration of matters extraneous to the pleadings, the motion was actually a motion for summary judgment, and it should have been tre
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