Helton Construction Co. v. High Point Shopping Center, Inc.

OPINION ON MOTION FOR REHEARING OR TRANSFER

PER CURIAM.

Pursuant to Rules 84.17 and 83.02, Hel-ton requests we rehear this appeal or transfer it to the Missouri Supreme Court. In support of its motion, Helton contends we erred in (1) our conclusion that by quashing the execution, the trial court “resolved the default issue when in fact the motion to quash execution did not present the issue of whether there had been a default....” and (2) in looking “to the grounds for dismissal in [Helton’s] motion to dismiss [Case No. CV189-440CC] to determine what was at issue instead of looking to the petition as the law requires.... [T]he dismissal of the petition, with prejudice, precluded a later determination of the same cause of action....”

We consider Helton’s assertions of errors in our opinion in the order presented above.

In its suggestions in support of its motion, Helton, pointing to the ten grounds for relief set out in the appellants’ motion to quash execution, contends, “None of the ten suggested the absence of a default. Instead, the grounds presumed that a default had occurred and suggested alternative grounds for relief from the default, such as estoppel, waiver, improper notice, among others.”

Helton raises an issue of no significance. When the trial court quashed the execution, it did so either because it believed there had been no default or because it believed default had occurred but was excused. The amount of money the appellants owed Helton under the consent judgment would be the same if no default occurred in August 1989 or if there was a default that was excused.

Our second error, Helton asserts, resulted from our reliance on Terre Du Lac, 737 5.W.2d 206, which Helton contends is “not in point” because it involved a direct appeal from the granting of a motion to dismiss, whereas this case does not involve appellate review of the grounds for dismissal. Helton does not expound on the significance of the distinction it has identified, and we see none. The motion for dismissal framed the issues before the trial court; a subsequent appeal or lack of appeal does not change that. We believe the principle stated in Terre Du Lac and elsewhere 6 is equally applicable where, as here, an appeal concerns the grounds for a dismissal *95even though the dismissal itself is not appealed.

The balance of Helton’s argument concerning its second allegation of error in the opinion is based on the assumption that the dismissal of Case No. CV189-440CC was with prejudice. In its brief, Helton raised the matter of issue preclusion and we concluded the dismissal of CV189-440CC, which we hypothesized to be with prejudice, had no issue preclusion effect because it was not a judgment on the merits. Hel-ton now argues that the other branch of the res judicata family — claim preclusion — operates as a result of the dismissal of Case No. CV189-440CC.

Rule 67.03, quoted in part supra note 5, concludes with this third sentence:

Any voluntary dismissal other than one which the party is entitled to take without prejudice, and any involuntary dismissal other than one for lack of jurisdiction, for prematurity of action, for improper venue or for failure to substitute a party for a decedent shall be with prejudice unless the court in its order for dismissal shall otherwise specify.

Grounds asserted by Helton in its motion to dismiss Case No. CV189-440CC raised the issue of trial court jurisdiction7. Helton challenged the jurisdiction of the court to grant equitable relief because Walters had not yet exhausted all legal remedies8, and it asserted that the failure to join Kroenke, the other statutory trustee, was “mandatory to constitute the real party in interest to bring this action.”9

Helton’s motion to dismiss Case No. CV189-440CC raised issues that caused the dismissal to be covered by an exception stated in Rule 67.03 to the general rule that an involuntary dismissal is with prejudice unless otherwise specified. Because the dismissal was without prejudice, it had no claim preclusion effect.

Helton’s motion for rehearing or transfer is denied.

. See also Major Lumber Co. v. G & B Remodeling, Inc., 817 S.W.2d 474, 476[2] (Mo.App.1991); Lipton Realty, Inc. v. St. Louis Housing Authority, 705 S.W.2d 565, 568[2] (Mo.App.1986); Johnson v. Great Heritage Life Ins. Co., 490 S.W.2d 686, 690[8] (Mo.App.1973).

. The legal file contains only Helton’s motion to dismiss; it does not contain the memorandum Helton filed in support of its motion. Thus, we do not know what authority Helton cited in support of its asserted grounds for dismissal.

. See, e.g., Blue Cross Health Services v. Sauer, 800 S.W.2d 72, 76[12] (Mo.App.1990).

. All statutory trustees must be joined in a suit pursued by a corporation which has forfeited its charter, or adequate reasons must be given to explain their absence. Integrity Ins. Co. v. Tom Martin Const. Co., 765 S.W.2d 679, 681-83[1] (Mo.App.1989); Erb v. Johannes, 684 S.W.2d 445, 447[4] (Mo.App.1984). Failure to join an indispensable party is jurisdictional. Vanderson v. Vanderson, 668 S.W.2d 167, 169[1] (Mo.App.1984).