Terri Ann Miener, by and through her guardian and next friend, Clyde J. Miener, et al., Plaintiffs-Appellants/Cross-Respondents, v. Missouri Department of Mental Health, et al., Defendants-Respondents/Cross-Appellant.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Terri Ann Miener, by and through her guardian and next friend, Clyde J. Miener, et al., Plaintiffs- Appellants/Cross-Respondents, v. Missouri Department of Mental Health, et al., Defendants-Respondents/Cross- Appellant. Case Number: 75004 & 75733 Handdown Date: 10/19/1999 Appeal From: Circuit Court of St. Louis County, Hon. Herbert Lasky Counsel for Appellant: Steven L. Leonard Counsel for Respondent: Robert Presson Opinion Summary: The Mieners appeal from the trial court's judgment in favor of Missouri Department of Mental Health and Dr. Roy Wilson on their equity claim and the trial court's judgment in favor of Health, Wilson, and Paul R. Ahr on their damages claims. Additionally, Health and Wilson appeal from the judgment in favor of the Mieners on Health's counterclaim and Health and Wilson's motion for damages and restitution. These appeals have been consolidated. APPEALS DISMISSED AND CAUSE REMANDED. Division Four holds: The record contains no transcript of the conference or any proceeding to resolve the merits of the issues presented in the counterclaim. The trial court's resolution of Health's counterclaim in the absence of a motion and without the presentation of evidence is a nullity and not reviewable. The counterclaim is still pending in the circuit court. Accordingly, the trial court's judgment was not final and appealable. Citation: Opinion Author: Mary K. Hoff, Judge Opinion Vote: APPEALS DISMISSED AND CAUSE REMANDED. Crandall, Jr., P.J. and Karohl., J., concur. Opinion:

Terri Ann Miener (Terri),(FN1) by and through her guardian and next friend, Clyde J. Miener, and Clyde J. Miener (Clyde), guardian and conservator of the estate of Terri Ann Miener, (collectively Plaintiffs or the Mieners) appeal from the trial court's August 14, 1998, judgment in favor of Missouri Department of Mental Health (MoDMH) and Dr. Roy Wilson (Wilson) on Plaintiffs' equity claim and the trial court's September 1, 1998, judgment in favor of MoDMH, Wilson, and Paul R. Ahr (Ahr) (all collectively referred to as Defendants) on Plaintiffs' damages claims. Additionally, MoDMH and Wilson appeal from the January 19, 1999, judgment in favor of Plaintiffs on the Counterclaim filed by MoDMH and on a Motion for Damages and Restitution filed by MoDMH and Wilson. These appeals have been consolidated. We dismiss the appeals due to lack of finality. Before discussing the dismissal, we will set forth a summary of the proceedings in earlier filed federal and state court litigation that are relevant to this lawsuit. EARLIER FILED LITIGATION RELATED TO THIS LAWSUIT The Mieners filed in the United States District Court for the Eastern District of Missouri (district court) a complaint against MoDMH seeking declaratory, injunctive and monetary relief to enforce a settlement agreement resolving an earlier federal court lawsuit (Settlement Agreement). Miener v. Missouri Dep't of Mental Health, Cause No. 4:92CV001363SNL (E.D. Mo. filed July 14, 1992) (the Federal Enforcement Litigation). On October 26, 1992, the district court granted the Mieners' motion for a preliminary injunction, which had sought an order requiring MoDMH to provide services for Terri through Life Skills Foundation (LSF). In relevant part the order stated: MoDMH "should be ordered to fund the program established for . . . Terri . . . subject to the $35,000.00 per year contribution which [the Mieners] had agreed upon in the Settlement Agreement." The district court did not require the posting of a bond or other security upon the granting of the preliminary injunction. On June 30, 1994, after a non-jury trial, the district court found in favor of the Mieners on their claims. In relevant part the district court: required MoDMH to provide Terri "a community placement program which furnishes day activities and 24 hour per day 8 hour rotating shift staffing rather than live-in staffing"; required the Mieners to "contribute $35,000.00 annually to the costs of Terri's placement and programming"; and awarded the Mieners "$133,446.41 for the sums which they expended in providing programming to Terri during a period in which [MoDMH] was obligated to provide said services pursuant to the [earlier federal court lawsuit's] settlement agreement." On August 18, 1995, the United States Court of Appeals for the Eighth Circuit (Eighth Circuit) vacated the district court's judgment and remanded for dismissal due to lack of federal court jurisdiction. Miener v. Missouri Dep't of Mental Health, 62 F.3d 1126 (8th Cir. 1995). The parties to the instant lawsuit do not dispute that the Eighth Circuit issued its

mandate on September 29, 1995. The record before us does not reveal what action, if any, the district court either was requested to take or took upon remand. In late October 1995, the Mieners filed a lawsuit in St. Louis County Circuit Court, Cause No. 681875. While the record before us does not include a copy of any pleading from that lawsuit, in their brief Defendants characterized that lawsuit as "almost identical to the dismissed" Federal Enforcement Litigation. On March 14, 1996, the trial court granted a motion to transfer for improper venue and transferred the case "to the Circuit Court of Cole County, Missouri, pursuant to [Section] 476.410 RSMo." On March 20, 1996, the Mieners filed a dismissal without prejudice of that lawsuit and initiated the proceedings that are now before us on appeal. PROCEEDINGS IN THIS STATE COURT LAWSUIT Claims and Counterclaim On March 20, 1996, Plaintiffs filed in the Circuit Court for Saint Louis County (trial court) a three-count "Verified Petition in Equity for Temporary Restraining Order, Injunctive Relief, Declaratory Judgment and for Damages" (Petition). Plaintiffs sought equitable relief against MoDMH and Wilson, the Director of MoDMH, for breach of the Settlement Agreement (Count I); actual damages from MoDMH and Wilson for breach of the Settlement Agreement (Count II); and, alternatively, actual and punitive damages from Ahr, former director of MoDMH, for fraudulent representations in the execution of the Settlement Agreement (Count III). (FN2) In their Answer, Defendants denied liability and set forth various affirmative defenses. MoDMH also filed a one-count Counterclaim against both Plaintiffs seeking $253,682.04 it had spent "to provide a community placement" for Terri pursuant to the district court's subsequently vacated injunctive orders in the Federal Enforcement Litigation. In their Reply to Defendant's Counterclaim, Plaintiffs denied liability and set forth various affirmative defenses. Preliminary Injunctive Relief Proceedings and Bonds Along with their Petition initiating this lawsuit, Plaintiffs filed a Motion for Temporary Restraining Order and Preliminary Injunction. By that motion, Plaintiffs sought an injunction requiring MoDMH and Wilson to provide Terri "with such programming services through [LSF] as are reasonably and appropriately necessary to her safety, habilitation, rehabilitation, care and treatment," including 24-hour a day, seven-days a week staffing in the least restrictive environment without charge until appropriate payment, if any, by Plaintiffs is ordered. On April 10, 1996, the trial court granted a preliminary injunction, without a bond, "requiring the Defendants to continue to make Payments on [Terri's LSF] Program; and to continue to provide services to . . . Terri . . . in accordance

with the current IMP; subject to further orders of the Court." In a proceeding for writ of mandamus, this Court directed the trial court to dissolve that injunction for failure to comply with Rule 92.04(c). State of Missouri ex rel. Missouri Dep't of Mental Health, No. 70458 (Mo. App. E.D. May 17, 1996). On May 21, 1996, the trial court dissolved the injunction. At Plaintiffs' request, the trial court entered on September 26, 1996,(FN3) an Order which enjoined MoDMH "from stopping payment to [LSF] and ordered [MoDMH] to continue providing services to Terri . . . through [LSF]" pursuant to certain guidelines set forth in the Order. The Order expressly required Plaintiffs to post a $78,500 bond, which they did. Plaintiffs subsequently filed a motion for contempt alleging MoDMH had disobeyed the preliminary injunction by "refusing to pay [LSF] the cost which [LSF] charges for the services ordered by th[e] Court." On January 29, 1998, the trial court overruled Plaintiffs' motion for contempt. In its judgment on that motion, the trial court expressly stated, in relevant part, that "[a]ll previous orders of this Court shall remain in full force and effect [and MoDMH] is to continue to pay to [LSF] the additional sum of Ninety-Two Dollars and Four Cents ($92.04) per day until further order of this Court." Thereafter the trial court sustained Defendants' motion to modify the preliminary injunction bond and directed Plaintiffs "to double the current amount of Injunction Bond, forthwith." On May 21, 1998, Plaintiffs posted a rider doubling the bond from $78,500 to $157,000. Trial Court Proceedings on the Merits of the Parties' Claims On June 9, 1998, the trial court scheduled trial on the permanent injunction for July and stated "[u]ntil ruling thereon issue of jury trial postponed for further consideration." At the beginning of trial on the permanent injunction, Plaintiffs asked the trial court "to make findings of fact and conclusions of law in this matter." By memorandum, dated July 16, 1998, the trial court noted the cause had been heard and evidence concluded "as to the equitable issues in this matter"; directed the parties to submit proposed findings of fact and conclusions of law; and set the damages issues for trial "on September 23, 1998 through September 25, 1998." On August 14, 1998, the trial court filed its eleven page Findings of Fact, Conclusions of Law, and Judgment (Judgment) finding in favor of MoDMH and Wilson on Plaintiffs' equitable claim. In relevant part that Judgment dissolved and vacated the previously entered preliminary injunction requiring MoDMH to fund LSF services for Terri. Based on that Judgment, on September 1, 1998, the trial court entered "judgment in favor of the defendants on plaintiffs' claims for damages[; expressly stated t]his is a final judgment on all of plaintiffs' claims"; and cancelled the September 1998 trial setting. MoDMH and Wilson (Movants) subsequently filed a Motion for Damages and Restitution seeking recovery of a

total of $253,627.12(FN4) expended on Terri's placement with LSF during the time the trial court's injunction was in effect. In November 1998, the trial court denied this motion, without explanation, after hearing argument and providing the parties an opportunity to file additional briefs. On January 19, 1999, the trial court entered judgment in favor of Plaintiffs on the Counterclaim and on the Motion for Damages and Restitution, expressly stating "[t]his is a final judgment for purposes of appeal." The parties' appeals followed. We conclude we must dismiss these appeals due to the trial court's failure to resolve the Counterclaim. Dismissal of Appeals The trial court's Judgment on the Counterclaim and Motion for Damages and Restitution states in full: Conference held. Parties appear by counsel. Defendant[] [MoDMH's] counterclaim taken under submission. Judgment entered in favor of plaintiffs and against defendant[] [MoDMH] on the counterclaim. Judgment also entered against defendants [MoDMH and Wilson] on [those] defendants' Motion for Damages and Restitution. This is a final judgment for purposes of appeal. The January 19, 1999, entry on the trial court's docket sheet states in full: DEFENDANTS MOTION FOR DAMAGES & RESTITUTION (MOTION #8) WITHOUT TRIAL DENIED JUDGMENT ENTERED AGAINST DEFENDANT'S [sic] ON DEFENDANT'S [sic] MOTION FOR DAMAGES AND RESTITUTION. JUDGE HERBERT LASKY, DIV 23 DEFENDANT(S) #1 MISSOURI DEPARTMENT OF MENTAL HEALTH MOTION FOR SUMMARY JUDGMENT (MOTION #9) WITHOUT TRIAL DENIED ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ON THEIR [sic] COUNTERCLAIM, JUDGMENT ENTERED IN FAVOR OF PLAINTIFF'S [sic] AND AGAINST DEFENDANTS ON THE COUNTERCLAIM. THIS IS A [sic] Notably, the record contains no transcript of the conference on January 19, 1999, or of any proceeding to resolve the merits of the issues presented in the Counterclaim. On September 23, 1998, MoDMH(FN5) had filed an unsuccessful Motion for Summary Judgment urging it was entitled to judgment on the Counterclaim in the total amount of $274,301.00(FN6) for services it provided Terri while the district court's injunction was in effect. Neither the trial court's docket sheet nor the other materials available to us reflect that any proceeding addressing the Counterclaim occurred between the trial court's November 30, 1998, denial of the Motion for Summary Judgment and the January 19, 1999, conference. Nor does the record available on appeal reveal the parties' filing or presentation of any evidentiary materials, by stipulation or otherwise, relevant to the issues raised in the Counterclaim after the denial of the Motion for Summary Judgment. The parties' briefs on appeal also do not provide any indication of what, if anything, occurred at the January

19, 1999, conference or of what evidence and argument, if any, was presented to the trial court regarding the issues raised by the Counterclaim after the denial of the Motion for Summary Judgment. Finally, neither the trial court's Judgment of January 19, 1999, nor the docket entry for that date reveals the reasoning or evidentiary basis for the trial court's Judgment on the Counterclaim. Due to the lack of evidence regarding the Counterclaim presented to the trial court between the time the trial court denied the Motion for Summary Judgment and entered Judgment on the Counterclaim, we must dismiss these appeals and remand the matter to the trial court for further proceedings. City of Fenton v. Anderson, 619 S.W.2d 357, 358 (Mo. App. E.D. 1981). In that case the City of Fenton filed a petition for injunction to enjoin Anderson from engaging in a used car sales business at his residence. Id. at 357. The circuit court issued a temporary restraining order (TRO) subject to a $1,000.00 bond. Id. Anderson filed a counterclaim, not on the bond, seeking attorney fees, actual damages, and punitive damages. Id. After presentation of testimony at a hearing on the TRO, the parties agreed to submit the petition for injunction as well as the TRO. Id. at 358. Approximately two months later the circuit court dissolved the TRO, denied the petition for injunction, and found against Anderson on his counterclaim. Id. Both parties appealed. Id. at 357. We concluded "the order on the counterclaim was a nullity" because "no evidence was presented on the counterclaim . . ." Id. at 358. The judgment was therefore "not final and appealable" because it did not dispose of the counterclaim. Id. Accordingly, we dismissed the appeals and remanded the cause "to the circuit court for further proceedings." Id. As in City of Fenton, in this case no evidence was presented on the Counterclaim before the trial court entered Judgment on it. Therefore, the trial court's disposition of the Counterclaim was a nullity, making the Counterclaim still unresolved. These appeals are dismissed and the cause is remanded to the circuit court for further proceedings. Footnotes: FN1.When it is necessary to refer to one of the two parties having the same last name, we will use that party's first name. By doing so, we do not mean to be disrespectful. FN2.In general, the facts forming the basis of the claims in this state court lawsuit against MoDMH and Wilson are the same as the facts underlying the claims Plaintiffs pursued in the Federal Enforcement Litigation against MoDMH alone. FN3.Although this document has a file-stamp date of September 19, 1996, the date by the Judge's signature is September 26, 1996, and the order is docketed as filed on September 26, 1996. FN4.The requested total consists of $247,759.24 spent for the period May 1996 through July 1998 and an anticipated expenditure of $9,867.88 for August 1998.

0 FN5.Because only MoDMH filed the Counterclaim, we construe the Motion for Summary Judgment on that Counterclaim as actually pursued only by MoDMH, even though the motion was filed by both MoDMH and Wilson. FN6.This amount was averred to be the amount MoDMH expended on Terri's placement with LSF from March 1, 1993, through September 1995. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.