Theodis Brown, Plaintiff/Appellant v. Patrick Lawless, et al., Defendants/Respondents.

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: Theodis Brown, Plaintiff/Appellant v. Patrick Lawless, et al., Defendants/Respondents. Case Number: ED89567 Handdown Date: 06/29/2007 Appeal From: Circuit Court of the City of St. Louis, Hon. Emmett M. O'Brien Counsel for Appellant: Theodis Brown, Pro Se Counsel for Respondent: Patrick Lawless Opinion Summary: Theodis Brown appeals from an order dismissing his petition without prejudice. In 1997, Brown filed a petition against "Patrick Lawless et al, Romona Nash & Et Tals." The trial court found Brown's petition to be "so illegible and poorly drafted that it lacks merit" and that "the exact number of intended defendants and their names cannot be determined." The trial court overruled Brown's request to proceed as a poor person and directed the Circuit Clerk to take no further action unless Brown provided a legible list of each intended defendant, with street address service instructions, service copies for each defendant and the filing fee. The trial court held that Brown had until March 30, 2007 to comply with these instructions, but if he failed to comply, the matter would be dismissed without prejudice. Subsequently, the trial court entered a judgment on April 3, 2007, concluding that Brown failed to comply with its order and dismissed his cause of action without prejudice. DISMISSED. Division Five holds: This court has no jurisdiction over this appeal, because a judgment dismissing a cause of action without prejudice is not final and appealable. Citation: Opinion Author: Booker T. Shaw, C.J.

Opinion Vote: APPEAL DISMISSED. Norton, J. and Cohen, J. Opinion: Theodis Brown (Appellant) appeals from a judgment dismissing his petition without prejudice. Because there is no final, appealable judgment, the appeal is dismissed. Appellant filed a petition against "Patrick Lawless et al, Romona Nash & Et Tals (sic)" (Respondents). On March 21, 2007, the trial court noted that the petition was "so illegible and poorly drafted that it lacks merit" and that "the exact number of intended defendants and their names cannot be determined." The trial court denied Appellant's request to proceed as a poor person and directed the Circuit Clerk to take no further action unless Appellant provided a legible list of each intended defendant, with street address service instructions, service copies for each defendant, and the filing fee." The court held that if Appellant complied with these instructions, summons shall issue. However, if Appellant failed to comply, the matter would be dismissed without prejudice. Appellant was provided until March 30, 2007 to comply. Subsequently, the trial court entered a judgment on April 3, 2007, concluding that Appellant had failed to comply with its order and dismissed Appellant's cause of action without prejudice. An order of dismissal without prejudice is not a final judgment and is not appealable. Ampleman v. Schweiss, 969 S.W.2d 862, 863 (Mo. App. E.D.1998). Appellant's cause was dismissed without prejudice after he failed to comply with the trial court's order of March 21, 2007. There is nothing that prohibits Appellant from simply refiling his petition, so long as it complies with the trial court's requirements. This Court must sua sponte determine its own jurisdiction. Eldridge v. Barnes, 189 S.W.3d 182, 183 (Mo. App. E.D. 2006). We issued an order to Appellant directing him to show cause why his appeal should not be dismissed. Appellant has filed a document in response to the order, but this response fails to address the issue of whether the judgment is appealable, but asserts the decision can be reversed for abuse of discretion. The appeal is dismissed for lack of a final, appealable judgment.(FN1)

Footnote: FN1.This Court previously dismissed one of Appellant's prior appeals in an unrelated case, because it was a dismissal without prejudice and there was no final, appealable judgment. Brown v. Dooley, 207 S.W.3d 648, 649 (Mo. App. E.D. 2006). Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.