Appealing Dismissals Without Prejudice

The default rule is that only judgments on the merits or dismissals with prejudice may be appealed. Dismissals without prejudice mean that the litigant can re-plead and pursue the claims; so, the court of appeals is often reluctant to touch a dismissal without prejudice until the trial court had made a final decision. To that end, there is a long-standing rule that “dismissals without prejudice are not final and appealable.” Doe v. Visionaire Corp., 13 S.W.3d 674, 675 (Mo. App. E.D. 2000). The Missouri Supreme Court has noted, however, that exceptions have “swallowed all or nearly all of whatever rule once might have existed” on this. Naylor Senior Citizens v. Side Const. Co., 423 S.W.3d 238, 243 (Mo. 2014).

A more prominent exception is now when a litigant chooses to stand on his on her pleadings after a dismissal. More to the point, a dismissal without prejudice may be treated as a final, appealable judgment when the party elects not to plead further and stands on the original pleadings. Mayes v. Saint Luke’s Hosp. of Kansas City, 430 S.W.3d 260, 265 (Mo. 2014). This often occurs when a litigant feels that there is nothing more that could or can be alleged.

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