ROBERTS HOLDINGS, INC. v. BECCA'S BARKERY, INC., STEVEN KALCH, and REBECCA E. KALCH, Defendants-Respondents.

ROBERTS HOLDINGS, INC., )
)
Plaintiff-Appellant, )
)
vs. ) No. SD32757
)
BECCA'S BARKERY, INC., ) Filed: March 13, 2014
STEVEN KALCH, and REBECCA )
E. KALCH, )
)
Defendants-Respondents. )
APPEAL FROM THE CIRCUIT COURT OF TEXAS COUNTY
Honorable William E. Hickle, Circuit Judge
AFFIRMED
Roberts Holdings, Inc. ("Appellant") appeals the dismissal of its suit in replevin to
acquire possession of certain baking equipment alleged to be currently possessed by Becca's
Barkery, Inc. ("Becca's Barkery"), Steven Kalch, and Rebecca E. Kalch ("Respondents") in
Texas County. The case was dismissed under Rule 52.04(b) for an inability to join
indispensable parties "without prejudice to the refiling of [Appellant's] claims in the
Superior Court of Spokane County, Washington."1
1
The relevant portions of Rule 52.04 provide:
(a) Persons to Be Joined if Feasible. A person shall be joined in the action if: (1) in the
person's absence complete relief cannot be accorded among those already parties, or (2) the
person claims an interest relating to the subject of the action and is so situated that the
1
The trial court found that the dispute arose from "a failed business enterprise"
between two families -- "[t]he Kalch family . . . and the Roberts family" -- and that "a joint
venture agreement" ("Joint Venture Agreement") "obligated [DKS Ventures, LLC ("DKS")]
to furnish the manufacturing equipment at no cost to the Kalches." In return, DKS obtained
"the partial ownership of Becca's Barkery[.]" The trial court found that "Kevin Roberts,
[Dave] Roberts[,2] and Stuart Roberts are the principals of three companies involved in
performing the various parts of the . . . business arrangement [involving Respondents]:
[DKS], Total Baking Solutions, LLC [("Total Baking Solutions")], and [Appellant]." The
trial court found that "because the transaction was carried out by several closely related
business entities, orderly justice is only possible if all claims and parties are joined for
hearing before one judge in one courtroom."
The trial court further found that the United States District Court for the Western
District of Missouri had previously determined that, "based on a forum selection clause
contained in the joint venture agreement[,]" "the state of Washington had exclusive
disposition of the action in the person's absence may: (i) as a practical matter impair or
impede the person's ability to protect that interest or (ii) leave any of the persons already
parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent
obligations by reason of the claimed interest. If the person has not been joined, the court
shall order that the person be made a party. If the person should join as a plaintiff but refuses
to do so, the person may be made a defendant.
(b) Determination by Court Whenever Joinder Not Feasible. If a person as described in
Rule 52.04(a)(1) or Rule 52.04(a)(2) cannot be made a party, the court shall determine
whether in equity and good conscience the action should proceed among the parties before it
or should be dismissed, the absent party being thus regarded as indispensable. The factors to
be considered by the court include: (i) to what extent a judgment rendered in the person's
absence might be prejudicial to that person or those already parties; (ii) the extent to which
by protective provisions in the judgment, by the shaping of relief, or other measures, the
prejudice can be lessened or avoided; (iii) whether a judgment rendered in the person's
absence will be adequate; and (iv) whether the plaintiff will have an adequate remedy if the
action is dismissed for nonjoinder.
All rule references are to Missouri Court Rules (2013). All statutory references are to RSMo 2000.
2
In the instant case, there are references to "David Roberts," "David W. Roberts," and "Dave Roberts" in the
pleadings and attached documents. We understand the references to be to the same person, and for
consistency, we will refer to "Dave Roberts" in accordance with the documents attached to Appellant's petition.
2
jurisdiction over the dispute[.]" As a result, the trial court found that it was "precluded"
from hearing all claims and that "the only remaining forum [able] to fully dispense justice is
that of the Superior Court of Spokane County, Washington."
In three points relied on, Appellant contends "[t]he trial court erred in dismissing
[Appellant's] petition under [Rule] 52.04(b) because": (1) "the parties sought to be joined by
Respondents are not necessary under Rule 52.04(a)" as "the only issue in a replevin action is
the right of the plaintiff to possess the personal property at issue"; (2) "the trial court failed
to articulate the grounds for dismissal under the four[-]part test required under" Rule
52.04(b); and (3) Texas County "is the only appropriate venue for replevin in that no other
court can offer the remedy of replevin[.]" Finding no merit in any of these contentions, we
affirm the dismissal.
Facts and Procedural Background
Because the trial court dismissed Appellant's action based solely upon the pleadings
and documents attached to them, we take our factual background from the legal file,
including Appellant's petition ("the replevin petition"), documents attached to the replevin
petition, Appellant's "MOTION TO STRIKE [RESPONDENTS'] COUNTER
PETITION AND [RESPONDENTS'] MOTION TO JOIN ADDITIONAL PARTIES"
("the motion to strike"), and an order issued by the United States District Court for the
Western District of Missouri that was incorporated into the motion to strike.
The Kalches reside in Missouri and own Becca's Barkery, "a business that produces
dog biscuits, dog foods, and related products." The Roberts are "the principals of [DKS] and
[Total Baking Solutions]."3 In May 2010, Kevin Roberts drafted the "Joint Venture
Agreement" in which "DKS agreed to lease equipment from Total Baking Solutions for a
3
DKS is incorporated in Washington. Total Baking Solutions is incorporated in Ohio.
3
period of five years and provide that equipment to Becca's Barkery. After five years, title to
the equipment would be transferred to Becca's Barkery." In return, the Kalches "agreed to
transfer [to] DKS a 49% ownership interest in Becca's Barkery." The Joint Venture
Agreement contained a forum selection clause which required any litigation concerning the
agreement to be maintained in "Superior Court, Spokane County, Washington."
In September 2010, Appellant agreed to lease "certain baking equipment" ("the
bakery equipment") to DKS under a written lease agreement ("the Lease"). A copy of the
Lease was attached to the replevin petition as Exhibit A. The Lease was for a five-year
term, "commencing on September 1, 2010[,]" and required DKS to make lease payments of
$10,000 per month to Appellant.4 DKS gave Appellant a "continuing security interest in the
bakery equipment." Appellant alleged that "[d]uring 2010[,]" it provided the bakery
equipment to DKS and DKS then provided it to Respondents. The Lease was signed only
by Dave Roberts, who signed it on behalf of Appellant as lessor and on behalf of DKS as
lessee. The Lease provided that in the event of default, Appellant "may enter [DKS's]
premises and, without court order or other process of law, repossess and remove equipment
either with or without notice to [DKS]." Additionally, the Lease required DKS, "[u]pon
demand following a default," "to fully cooperate and assist [Appellant] in recovering the
equipment from any Third-party through the rights afforded by the Security Agreement and
applicable law." The Lease also had a provision that required any disputes involving the
4
There appears to be some dispute over the identification of the baking equipment installed in Becca's
Barkery. In a request for admissions, Appellant requested that Mrs. Kalch and Becca's Barkery admit that
"equipment specified on Exhibit 'B' was delivered to" Becca's Barkery. The response in [BECCA'S
BARKERY'S] RESPONSE TO PLAINTIFF'S FIRST REQUEST FOR ADMISSIONS" stated that "most
of the equipment delivered to Becca's Barkery did not contain serial numbers, or serial numbers that
are different than those contained in 'Exhibit B[.]'" For its part, Appellant does not contend that it claims
different baking equipment than that claimed by DKS.
4
Lease or the bakery equipment to be litigated in Spokane County, Washington Superior
Court.
A "Security Agreement" ("the Security Agreement") was attached to the replevin
petition as Exhibit B. The Security Agreement was also executed solely by Dave Roberts --
on behalf of Appellant as the secured party and on behalf of DKS as the debtor. The
Security Agreement provided that the debtor's rights were those "under the Uniform
Commercial Code in force in the State of Washington at the date of th[e] Security
Agreement." The petition also incorporated a December 21, 2010 "UCC1 Initial Filing"
form listing Appellant as the secured party and both Dave Roberts and Becca's Barkery as
debtors. The Security Agreement covered "All equipment listed on Exhibit A attached
hereto." No such exhibit to the Security Agreement was included in the legal file. The
replevin petition avers that "[d]uring 2010 the [bakery] equipment was provided by
[Appellant] to DKS wh[ich] then allowed [Respondents] to use it and it was installed in their
business location in Texas County." DKS never made any lease payments to Appellant.
In May 2011, the Kalches filed suit in Texas County against DKS, the Roberts, and
Total Baking Solutions. The defendants removed the case to federal court. The Kalches'
amended complaint sought relief on seven counts, including one for fraudulent inducement
and another for fraud. The defendants then successfully moved that the Kalches' amended
complaint be dismissed based upon the forum selection clause contained in the Joint Venture
Agreement. The United States district court found "that the agreed-upon forum selection
clause should be enforced and that Washington has exclusive jurisdiction over this dispute"
5
and observed that the defendants had "state[d] that there [wa]s already a case pending
between the parties in Washington."5
In June 2012, Appellant filed the instant action against Respondents in two counts.
Count I sought replevin of "certain baking equipment" that DKS leased from Appellant in
September 2010 and "$10,000 per month" as damages for detention of the bakery
equipment.6 Respondents' answer asserted that under the Joint Venture Agreement, DKS
was to lease the baking equipment from Total Baking Solutions, and Respondents included a
counter-petition seeking money damages for "false representations" made by Appellant.
Respondents also filed a "MOTION TO COMPEL JOINDER OF PERSONS
NEEDED FOR JUST ADJUDICATION" ("motion for joinder") to compel the addition of
5
The judgment in the instant case states
[DKS] had filed an action against the Kalches in Spokane County Superior Court on May 24,
2011, several weeks after [DKS] had been sued in Missouri. The Kalches removed the
Spokane County case to federal court, where it was pending at the time of [the dismissal of
the case in the United States District Court for the Western District of Missouri]. After the
dismissal of the Missouri claims [in the Missouri federal case], [DKS] moved to remand the
federal case pending in Washington state back to Spokane County, again based on the forum
selection clause of the joint venture agreement . . . . [and the federal court in Washington
remanded that case] to Spokane County Superior Court. [The federal court in that case]
specifically permitted the filing by the Kalches of their Missouri claims upon remand of the
case to Spokane County Superior Court in the following language of [the] order, p. 13:
"Accordingly, The Court grants DKS's motion to remand this lawsuit to Spokane County
Superior Court, where Mrs. Kalch may assert her Missouri claims as compulsory
counterclaims."
However, it appears that the Kalches were initially denied leave to amend their answer to assert
counterclaims and a third-party complaint in the matter in Spokane County Superior Court. The
judgment in the instant case went on to observe that
the suit pending in Spokane county consists only of the claim by DKS against the Kalches.
Meanwhile, the Kalches have been forbidden to bring any of the claims that they have
against any of the Roberts family members or any of the Roberts entities, contrary to [the
Washington federal court] order.
Appellant asserts in its brief that the Washington state case is pending and that "the Kalches have
asserted their counterclaims" but it does not cite a page in the record as supporting that claim. At oral
argument, counsel for the parties indicated that the Kalches have been permitted to assert their
counterclaims in the Spokane county action.
6
Count II, which sought damages for unjust enrichment or quantum meruit, was later voluntarily dismissed by
Appellant.
6
DKS, Total Baking Solutions, and the Roberts to the instant action as "indispensable
parties[.]" Respondents alleged that "[t]he additional parties are indispensable because
[Appellant's] cause of action is based upon a contract between DKS and [Appellant, and
Respondents] have claims against these additional parties who were a part of this
transaction, said claims that are compulsory."
Appellant's motion to strike claimed that the "contract" underlying Respondents'
counter-petition included a forum selection clause placing "'[e]xclusive jurisdiction and
venue . . . in the Superior Court, Spokane County, Washington.'" Appellant asserted that
"[t]here is another action pending between the parties in the state of Washington[,] pending
in the Spokane County Superior Court, Cause No. 2011-02-02145-3 and [it] continues on
the issues surrounding the contract, now asserted by [Respondents] in this action."
Appellant alleged that its replevin action "has nothing to do with the contract alleged by
[Respondents]." Appellant's motion to strike also referred to the order from the United
States District Court for the Western District of Missouri and stated that "[Respondents] are
barred by the doctrine of collateral estoppel as to those issues [against DKS, the Roberts,
and Total Baking Solutions] in bringing the action in this forum."
In September 2012, Appellant moved for summary judgment and, inter alia, filed a
supporting affidavit from Dave Roberts. The affidavit stated that Appellant leased "certain
baking equipment" to DKS, that DKS "allowed [Respondents] to take possession of the
bakery equipment and to start using same[,]" and that Appellant "was, and is, the owner of
the bakery equipment . . . [which] remains in [Respondents'] possession."
Respondents opposed the motion for summary judgment, and the matter was set for
hearing in February 2013. On the day of the hearing, Respondents provided the trial court
7
with copies of documents from the Washington litigation: the complaint filed in May 2011
in Washington Superior Court; the October 2011 order from the United States District Court
for the Eastern District of Washington granting remand after argument; a "Motion for Leave
to Amend Answer" filed in January 2013 in Washington Superior Court; the Washington
Superior Court's February 2013 "Order Denying Defendants' Motion for Leave to Amend
Answer," and a "Verbatim Report of Proceedings" from February 2013 in Washington
Superior Court. Respondents also provided their amended complaint filed in the United
States District Court for the Western District of Missouri and the order that subsequently
dismissed that action.
In the complaint DKS filed in Washington Superior Court, DKS alleged that it
"agreed to [provide] production equipment for use by [Becca's Barkery,] along with
installation and initial start-up of the equipment[,]" and that the Kalches "refus[ed] to
comply with their obligations under the Joint Venture Agreement[.]" DKS further alleged
that the Kalches "continue to possess and use the equipment that DKS provided to produce
product and income" and that the Kalches' "actions constitute conversion of the personal
property belonging to DKS without lawful right." Among other remedies, DKS sought a
judgment "declaring that DKS shall be provided access to and entitled to remove its property
(replevin)."
In March 2013, the trial court denied Appellant's motion for summary judgment. It
also took up Respondent's motion for joinder and found
that the claims against the proposed additional parties are inextricably
intertwined with the claim by [Appellant] in the instant case. However, the
addition of the proposed additional parties is precluded by the federal court
rulings requiring that the litigation of any claims against such parties take
place in the Superior Court of Spokane County, Washington.
8
The trial court noted, however, that the parties' argument had not addressed whether
Appellant's petition should be dismissed under Rule 52.04(b) and set a hearing at which the
parties would be expected to address that question.
Although we cannot locate a docket entry indicating that Respondent had filed a
motion to dismiss based upon Rule 52.04(b), Appellant filed both "SUGGESTIONS IN
OPPOSITION TO DISMISSAL PURSUANT TO RULE 52.04(B)" and a "RESPONSE
TO [RESPONDENTS'] MOTION TO DISMISS[.]" In the latter pleading, Appellant
responded, inter alia, that "the Washington Court has been asked to review the issue of
replevin for declaratory purposes between DKS and [the] Kalch[es]," but Appellant
maintained that that fact did not conflict with "its right to possession be[ing] tested as to
[Respondents] for baking equipment in Missouri."
During the argument on the motion to dismiss, "[c]ounsel for [Respondents]
consented to personal jurisdiction over all [Respondents] by the Superior Court of Spokane
County, Washington with respect to the claims now asserted by [Appellant]." In May 2013,
the trial court entered its order dismissing the instant case without prejudice, noting that it
had heard argument from the attorneys and had "review[ed] the entire file as well as
correspondence and suggestions submitted by the parties after the April 3, 2013 hearing."
The trial court found that "[alt]hough the Roberts argued in Missouri courts that the claims
of the Kalches could only be heard in Spokane County, their position reversed once the
Kalches sought to file their claims there." The trial court pointed to DKS's objection to the
Kalches' motion to file an amended complaint, and the Washington court's denial of "the
addition of the claims previously dismissed in Missouri in favor of Spokane County." The
trial court stated that it was
9
concerned by the possibility that only one side of the competing litigants will
have claims heard, but there is simply nothing that the [trial court] can do
about it. Two federal courts have now specifically held that the claims by the
Kalches cannot be brought in Missouri. Two federal courts have held that
those claims must instead be brought in the Superior Court of Spokane
County, Washington. Neither federal court order has been appealed by any
party, and thus the [trial court] in Missouri is collaterally estopped from
hearing any of the claims by the Kalches.
The trial court also found that "[a]s Missouri has been precluded from serving as that
forum, the only remaining forum to fully dispense justice is that of the Superior Court of
Spokane County, Washington." The trial court observed that if the final judgment is
favorable to Appellant in Washington Superior Court on the replevin claim, then that
judgment "can easily be registered as a foreign judgment in Missouri using the accelerated
procedures contained in section 511.760[.]" The trial court concluded, after considering the
four factors set forth in Rule 52.04(b), "that in equity and good conscience the instant action
should not be allowed to proceed in the [trial court]."
No motion to amend the judgment was filed, and this appeal timely followed its
entry.7
Applicable Principles of Review and Governing Law
We first consider whether the judgment may be appealed because it dismissed the
case without prejudice. Generally, an order dismissing a case without prejudice is not final
for purposes of appeal, State ex rel. Nixon v. Summit Inv. Co., 186 S.W.3d 428, 432 (Mo.
App. S.D. 2006), but there are exceptions to that rule. Id. at 433. One such exception arises
"where the dismissal has the practical effect of terminating the litigation in the form cast or
7
After Appellant's notice of appeal was filed, this court issued an order to show cause why the appeal should
not be dismissed because it was taken from an order not denominated as a "judgment" or "decree." We
subsequently allowed the appeal to proceed after the trial court entered a July 2013 "ORDER NUNC PRO
TUNC" "renominat[ing] the order as 'Order and Judgment of Dismissal Without Prejudice'" that stated the
order was intended to "be final for purposes of appeal[.]"
10
in a plaintiff's chosen forum." Doe v. Visionaire Corp., 13 S.W.3d 674, 676 (Mo. App. E.D.
2000). Because the judgment precluded Appellant from proceeding in its chosen forum, that
exception is applicable, and we have jurisdiction to hear the appeal.
"This court will 'affirm a trial court's decision under Rule 52.04 unless it is
unsupported by substantial evidence, it is against the weight of the evidence, or it
misinterprets or misapplies the law.'" Dolphin Capital Corp. v. Schroeder, 247 S.W.3d 93,
97 (Mo. App. W.D. 2008) (quoting ADP Dealer Servs. Grp. v. Carroll Motor Co., 195
S.W.3d 1, 9 (Mo. App. E.D. 2005) (internal citations omitted)). We review the dismissal de
novo, and "[w]e accept all of plaintiff's averments as true and view the allegations in the
light most favorable to the plaintiff." Vogt v. Emmons, 158 S.W.3d 243, 247 (Mo. App.
E.D. 2005).
Analysis
Point I – Necessary Parties
Appellant's first point asserts the petition was erroneously dismissed because the
parties which Respondents sought to add were not necessary parties in that the only issue for
purposes of replevin is whether the plaintiff is entitled to possession of the property.
Appellant argues, "The issues in the case at bar are narrow and deal with [Appellant's] right
to possession of the Equipment as weighed against those of Respondents." Appellant insists
that "[t]he Roberts, DKS[,] and Total Baking Solutions either have no interest in the
Equipment or have agreed contractually that [Appellant] has the superior right in the
Equipment and the right to possess the Equipment at the time of default in the Lease
[between Appellant and DKS]."
11
"A party must first be found necessary to a lawsuit before we consider whether that
party is indispensable." Heitz v. Kunkel, 879 S.W.2d 770, 771 (Mo. App. S.D. 1994). "If
the answer [to this preliminary question] is in the negative, no further consideration need be
given to the indispensability of that party." State ex rel. Twenty-Second Judicial Circuit v.
Jones, 823 S.W.2d 471, 475 (Mo. banc 1992). "A person is a necessary party if that person
claims an interest relating to the subject of the action and is so situated that the disposition of
the action in the person's absence may, as a practical matter, impair or impede the person's
ability to protect that interest." Citizens Ins. Co. of Am. v. Leiendecker, 962 S.W.2d 446,
450 (Mo. App. E.D. 1998). "It has been determined that an 'interest' which compels joinder
is not one which is merely consequential, remote or a conjectural possibility of being
somehow affected by the result of an action." Moschenross v. St. Louis Cnty., 188 S.W.3d
13, 25 (Mo. App. E.D. 2006). The interest "must be such a direct claim upon the subject
matter of the action that the joined party will either gain or lose by direct operation of the
judgment to be rendered." State ex rel. Emcasco Ins. Co. v. Rush, 546 S.W.2d 188, 197
(Mo. App. St.L.D. 1977). "If joinder of such a necessary party is not feasible, 'the court
shall determine whether in equity and good conscience the action should proceed among the
parties before it or should be dismissed, the absent party being thus regarded as
indispensable.'" Jones v. Jones, 285 S.W.3d 356, 360 (Mo. App. S.D. 2009) (quoting Rule
52.04(b)).
"[T]he gist of [a] replevin action is to test plaintiff's right to immediate possession
of the chattels and defendant's wrongful detention. Proof of title or ownership is not an
inherent element of the action, although it might incidentally become involved." Phillips v.
Ockel, 609 S.W.2d 228, 231 (Mo. App. E.D. 1980). The plaintiff must prove its "immediate
12
right to possession." Turman v. Schneider Bailey, Inc., 768 S.W.2d 108, 112 (Mo. App.
W.D. 1988).
Appellant relies on First Nat'l Bank of Clayton v. Trimco Metal Prods. Co., 429
S.W.2d 276, 277 (Mo. 1968), in arguing that "[t]he fact that a third person may have some
interest in the property will not preclude replevin by one having right to possession as
against the Defendants named in the suit." (Capitalization and underlining as in Appellant's
brief.) In Trimco, the actual owner of the equipment was dismissed from the suit, and the
remaining claim by the bank for possession of the equipment against the debtor was allowed
to proceed. Id. at 276-77. But the debtor in Trimco had "admit[ted] the execution of the
chattel mortgage. This g[ave] the [b]ank, as against [the debtor], a 'special property or
interest' in the equipment sufficient to sustain the [b]ank's action in replevin." Id. at 277.
The court found that even though the actual owner "may be entitled to take possession of the
property from the [b]ank[,]" the debtor could not "defend against its own chattel mortgage
on the ground that it did not own the equipment." Id.
Trimco is inapposite because there is no agreement in the instant case between
Appellant and Respondents that would give Appellant such a "special interest" and would
demonstrate its right to take immediate possession of the baking equipment. And while
Appellant does not purport to claim different equipment than that also claimed by DKS, the
pleadings suggest that there may be some dispute between Appellant and Respondents over
the identification of the actual equipment provided to Respondents. No dispute about the
identity of the equipment at issue was apparent in Trimco.
In addition to demonstrating a right to immediate possession, the plaintiff in a
replevin action must also be entitled to exclusive possession of the property. Vahey v.
13
Vahey, 120 S.W.3d 288, 291 (Mo. App. E.D. 2003). As a result, "[w]here several parties
have an ownership interest in the property, [and ownership is the basis of the right to
possession], all of the owners must be joined in the suit." Id.; but see Foulke v. McIntosh,
234 S.W.2d 805, 808 (Mo. App. Spfld.D. 1950) (holding that one of the two owners by
tenancy in the entireties was able to maintain an action in replevin to reacquire property
taken from the land). Vahey was a case in which four of seven family members entitled to
share in the personal property of a decedent sued to recover the property. 120 S.W.3d at
290. On review, the court found that "[t]he trial court erred in proceeding with the action
without the joinder of the remaining three owners." Id. at 291.
Here, the pleadings and their incorporated documents reveal that more than one party
claims the right to possess the equipment, and there has been no finding that Appellant's
right to possess is the superior one. DKS alleged in Washington Superior Court that the
equipment is "its property," that the Kalches converted this property "belonging to DKS
without lawful right[,]" and that the Kalches "continue to use the equipment without
permission or right." In its seventh count against the Kalches, DKS sought a declaratory
judgment that it "shall be provided access to and entitled to remove its property (replevin)."
As Respondents point out, Appellant is the only party to the instant lawsuit that
signed the Lease, and Appellant acknowledges in its reply brief that it was not a party to the
Joint Venture Agreement. As a result, whether Appellant's claim to possession of the
property is superior to Respondents' claims relies -- at least in part -- upon the determination
of Respondents' rights under the Joint Venture Agreement with DKS. Appellant attempts to
avoid this problem by arguing in its reply brief that the claims of DKS and itself are not
inconsistent in that DKS's right is "subject to the paramount rights of [Appellant]." This
14
argument ignores the fact that no such priority of rights as to the equipment held by
Respondents has been established, and in asserting its right to possession of the baking
equipment in the Washington Superior Court, DKS did not state that its rights were inferior
to those of another.
Just as Appellant correctly argues that it would be inappropriate to disregard its
corporate identity, so too the separate identity of DKS cannot be ignored. DKS's interest
may be impeded if it is not joined as a party in Appellant's replevin claim (see Rule
52.04(a)(2)(i)), and if it were possible to join DKS, it would stand to gain or lose by the
judgment rendered. See Emcasco Ins. Co., 546 S.W.2d at 197. Further, the absence of
DKS from the instant matter would leave Respondents "subject to a substantial risk of
incurring double . . . or otherwise inconsistent obligations by reason of [Appellant's] claimed
interest." Rule 52.04(a)(2)(ii).
There is no need to decide at this point whether the Roberts or Total Baking
Solutions are also necessary parties to the replevin claim because DKS is a necessary party.
Whether DKS is an indispensable party is not specifically contested in Appellant's first
point; its argument is only that none of the parties suggested by Respondents were necessary
parties. DKS, a necessary party, could not be joined in the instant action, and Appellant has
failed to demonstrate that DKS is not an indispensable party. Point I fails.
Point II – Sufficiency of the Language of the Judgment
Point II contends the trial court did not "articulate the grounds for dismissal" as
required under Rule 52.04(b). Appellant relies on two cases, Ward v. Bank Midwest, NA,
871 S.W.2d 649, 651 (Mo. App. W.D. 1994), and Claas v. Miller, 806 S.W.2d 141, 144
(Mo. App. W.D. 1991), for the principle that a trial court must follow the procedure laid out
15
in Rule 52.04: if a person is necessary, but their joinder is not feasible, then the "court must
decide if the person is indispensable by considering four listed factors. Only if the person is
determined to be indispensable and cannot be joined should the action be dismissed." Ward,
871 S.W.2d at 651. "The failure of a trial court to follow the procedures in Rule 52.04 to
make the proper determinations before granting a dismissal is grounds for reversing the trial
court's order." Id.; see also Claas, 806 S.W.2d at 144 (because the trial court failed to make
the determination required by Rule 52.04(b), the dismissal could not stand).
It is important to note that Appellant does not allege that the trial court failed to
follow Rule 52.04(b). Appellant's claim is that the trial court failed to articulate its grounds
for dismissal. To preserve such a claim, an appellant must comply with Rule 78.07(c),
which provides; "In all cases, allegations of error relating to the form or language of the
judgment, including the failure to make statutorily required findings, must be raised in a
motion to amend the judgment in order to be preserved for appellate review." "Since the
amendment of Rule 78.07(c), claims based on a failure to make required findings are not
preserved for appeal and are thereby waived unless raised in the trial court by a motion to
amend the judgment." Stuart v. Ford, 292 S.W.3d 508, 517 (Mo. App. S.D. 2009).8
Here, the trial court stated that it had "consider[ed] the four factors set forth in Rule
52.04(b), [but] conclude[d] that in equity and good conscience the instant action should not
be allowed to proceed in the [trial court]." As earlier noted, Appellant did not file a motion
to amend the judgment. As a result, Appellant did not give the trial court an opportunity to
"show its work" in applying the four criteria set forth in Rule 52.04(b)(i)-(iv). At oral
argument, Appellant's counsel suggested that a dismissal judgment could be treated
8
"Rule 78.07(c) was amended effective January 1, 2005. Prior to the amendment, 'no post-trial motion was
required to preserve an issue for appeal in a court-tried case.'" Id. (quoting Wilson-Trice v. Trice, 191 S.W.3d
70, 72-73 (Mo. App. W.D. 2006).
16
differently than other judgments for purposes of Rule 78.07(c). We find no such authority
for the suggestion, and the language of the rule itself provides that "in all cases" the claim
regarding the sufficiency of the findings in the judgment must be preserved by including it
in a motion to amend the judgment. Because Appellant's second point was not preserved for
review, it is denied.
Point III – Venue for Replevin in Missouri
Appellant's third point contends the trial court erred in dismissing the petition
because "Texas County . . . is the only appropriate venue" for its replevin claim as the
remedy may not be obtained elsewhere. Appellant is correct that Missouri statutes provide
that venue for a replevin suit is in the county in which the property is located.
Suits commenced by attachment against the property of a person, or
in replevin or claim and delivery of personal property, where the specific
property is sought to be recovered, shall be brought in the county in which
such property may be found; and in all cases where the defendant in actions
in replevin or claim and delivery of personal property is a nonresident of the
county in which the suit is brought, service shall be made on him as under
like circumstances in suits by attachment.
Section 508.020. See also Marston v. Rose-Elash, 720 S.W.2d 783, 784 (Mo. App. W.D.
1986) (section 508.020 requires a replevin case to "be brought in the county where the
property is found").
The trial court seemed to contemplate that a replevin action could be added to the
pending litigation in Washington Superior Court when it stated that "[t]o the extent that one
of the claims to be decided [in Washington Superior Court] is [Appellant]'s replevin claim,
the final judgment, if favorable to [Appellant], can easily be registered as a foreign judgment
in Missouri" under section 511.760.
17
We do not need to determine the extent of remedies available to Appellant in
Washington (and subsequently here in Missouri by means of the registration of a foreign
judgment) to decide Appellant's third point. Simply because venue for a replevin action
would not lie in a Missouri court outside the county in which the property is located does not
prevent the dismissal of a suit for failure to join an indispensable party, even if it means that
the plaintiff is not afforded that relief. Cf. Goodkin v. 8182 Maryland Assocs. Ltd. P'ship,
80 S.W.3d 484, 491 (Mo. App. E.D. 2002) (summary judgment in favor of defendant
affirmed when statute of limitation had expired as to the general partner, an indispensable
party).
Similarly, in Dolphin Capital Corp., the plaintiff's collection actions against seven
defendants based on assigned rental agreements were dismissed. 247 S.W.3d at 94, 98. The
defendants had counterclaimed based on theories of fraud and unenforceable adhesion
contracts. Id. at 97. The reviewing court agreed with the trial court that the defendants'
fraud claim could not "be fully adjudicated in [the original lessor's] absence" and the
original lessor was therefore a necessary party. Id. at 98. That ruling was required even
though it was "indisputable" that the original lessor could not be joined in the action due to
his being under bankruptcy protection. Id. at 94, 98. The original lessor was found to be an
indispensable party because "the allegations of fraud, as well as the disturbing inferences
arising from the actions of [the plaintiff] and [the original lessor] clearly distinguish[ed]
th[e] case from a garden-variety collections action." Id. at 98. The court refused to allow
the plaintiff's case to go forward, finding that the "fact that [the original lessor] cannot be
here should be [the plaintiff's] responsibility rather than that of the defendant-respondents[,]"
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and "equity and good conscience demand that, in the absence of [the original lessor], the
action be dismissed." Id.
Here, a competing claim for replevin has been asserted by another entity, and, as the
trial court found, the underlying transaction at the heart of this dispute "was carried out by
several closely related business entities, [such that] orderly justice is only possible if all
claims and parties are joined for hearing before one judge in one courtroom." The litigation
of those underlying claims has been moved to Washington Superior Court. We disagree
with Appellant's contention that the dispute over the Joint Venture Agreement is irrelevant
to a determination of who has the right to immediate possession of the baking equipment
because one party to that agreement is also claiming that it provides such a right. Therefore,
in equity and good conscience, it was appropriate for the trial court to dismiss the petition
even though venue for a replevin claim would ordinarily lie in Texas County. Point III is
also denied, and the judgment of dismissal is affirmed.
DON E. BURRELL, J. – OPINION AUTHOR
JEFFREY W. BATES, P.J. - CONCURS
MARY W. SHEFFIELD, J. - CONCURS
19