In Division
ACLU OF MISSOURI, ) and LUZ MARIA HENRIQUEZ, ) ) Appellants, ) ) No. SD38122 vs. ) ) FILED: April 29, 2024 MARIES COUNTY SHERIFF’S OFFICE, ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF MARIES COUNTY
Honorable John D. Beger, Judge
VACATED AND REMANDED WITH INSTRUCTIONS
ACLU of Missouri and Luz Maria Henriquez (collectively referred to as “ACLU”) appeal
the decision of the Circuit Court of Maries County granting a motion to dismiss filed on behalf
of the Defendant Maries County Sheriff’s Office (“Sheriff’s Office”). In two points on appeal,
ACLU contends that (1) the trial court erred in determining that Sheriff’s Office is not an entity
that can sue and be sued under the Missouri Sunshine law, and (2) the trial court abused its
discretion by denying ACLU leave to amend its petition to add the appropriate party defendant.
Finding merit in point two, we vacate and remand with directions and do not reach point one. Factual Background and Procedural History
On August 21, 2020, ACLU filed a petition naming “Maries County Sheriff’s Office” as
a party defendant. The petition was served on a Maries County deputy sheriff and asserted that
Sheriff’s Office violated Missouri’s Sunshine law under section 610.026 1 by failing to provide
requested copies of documents relating to certain social media communications and policies
enacted by Sheriff’s Office. The petition was later served on Chris Heitman, the Maries County
Sheriff (“Sheriff Heitman”), and an attorney for Sheriff’s Office made a limited entry of
appearance. In addition, ACLU took the deposition of Sheriff Heitman shortly after the petition
was served on him.
ACLU moved for summary judgment, but Sheriff’s Office filed a motion to dismiss the
petition alleging that the Sheriff’s Office was an entity that “cannot sue or be sued.” In response,
ACLU asserted that Sheriff’s Office was an entity that could sue and be sued under the Sunshine
law. ACLU further argued in the alternative that if Sheriff’s Office was not an appropriate party
to be sued, “the appropriate remedy is a simple substitution of the parties or an amendment of the
petition” and the trial court “may order that [the Sheriff’s name] be added pursuant to Rule 52.13
or by amendment of the petition.” The trial court ruled that Sheriff’s Office was not an entity
that could sue or be sued. In response to ACLU’s assertion that the trial court should grant leave
to amend its petition, the trial court stated the following:
[ACLU] also argues that, if the Court is inclined to grant [Sheriff’s Office’s] Motion to Dismiss it should allow the Sheriff’s name to [be] added per the last sentence of Rule 52.13(d). The Court does not view that as a viable option since original service herein was not upon the sheriff. The trial court granted the Motion to Dismiss without prejudice. ACLU appeals. 2
1 All statutory references are to RSMo 2016. All rule references are to Missouri Court Rules (2022). 2 In a motion taken with the case, Sheriff’s Office moved to dismiss this appeal by arguing the trial court’s judgment, as a dismissal without prejudice, was not final. Sheriff’s Office argues that as a general rule, “a dismissal
2 Standard of Review
“The circuit court’s decision whether to grant or deny leave to amend will not be
disturbed absent an obvious and palpable abuse of discretion.” Moore v. Armed Forces Bank,
N.A., 534 S.W.3d 323, 328 (Mo.App. 2017) (internal quotation marks omitted). “Judicial
discretion is abused when the court’s ruling is clearly against the logic of the circumstances
presented to the court and is so unreasonable and arbitrary that it shocks the sense of justice and
indicates a lack of careful, deliberate consideration.” Sheffield v. Matlock, 587 S.W.3d 723, 731
(Mo.App. 2019). “[O]utright refusal to grant the leave without any justifying reason appearing
for the denial is not an exercise of discretion; it is merely abuse of that discretion and
inconsistent with the spirit of the [Rule].” Asmus v. Cap. Region Fam. Prac., 115 S.W.3d 427,
437 (Mo.App. 2003) (internal quotation marks omitted).
Discussion
ACLU asserts in its second point, which is dispositive, the trial court abused its discretion
by denying ACLU leave to amend its petition to substitute the party defendant because the trial
court denied ACLU’s request without offering any explanation as to why leave to amend should
not be granted.
Leave to amend a petition “shall be freely given when justice so requires.” Rule
55.33(a). Similarly, “[o]n sustaining a motion to dismiss a claim, counterclaim or cross-claim
the court shall freely grant leave to amend and shall specify the time within which the
without prejudice is not a final judgment and, therefore, is not appealable.” Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997). It is well-established that “a party can appeal from a dismissal without prejudice if the dismissal has the practical effect of terminating the action.” Adem v. Des Peres Hospital, Inc., 515 S.W.3d 810, 814 (Mo.App. 2017) (internal quotation marks omitted). “If the plaintiff would be barred from refiling the suit due to the statute of limitations, then a dismissal without prejudice may be deemed final because it has the practical effect of terminating the litigation.” City of Kansas City v. Ross, 508 S.W.3d 189, 192 (Mo.App. 2017). Because ACLU is barred from refiling its petition by the Sunshine law statute of limitations under section 610.027.5, the trial court’s dismissal without prejudice has the practical effect of ending the litigation. Accordingly, the trial court’s judgment was final, and we deny Sheriff’s Office’s motion to dismiss this appeal.
3 amendment shall be made or amended pleading filed.” Rule 67.06. “Denial of leave to amend is
within the sound discretion of the trial court,” see Matlock, 587 S.W.3d at 731, and in
considering whether justice requires granting leave to amend, courts consider several factors
including “the reasons for the moving party’s failure to include the matter in the original
proceedings; whether there is any prejudice to the non-moving party; and whether there will be
hardship to the party requesting amendment if the request is denied.” Moore, 534 S.W.3d at
328. “A non-moving party is not prejudiced by a motion for leave to amend unless that party is
deprived of a legitimate claim or defense.” Germania St., LLC v. Jackson, 509 S.W.3d 123,
126 (Mo.App. 2016).
Because the statute of limitations for ACLU’s Sunshine law claim has run, amendment of
ACLU’s petition is only permitted when the amendment “relates back to the date of the original
pleading,” which occurs when “the claim or defense asserted in the amended pleading arose out
of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original
pleading.” Rule 55.33(c). Further:
Free access — add to your briefcase to read the full text and ask questions with AI
In Division
ACLU OF MISSOURI, ) and LUZ MARIA HENRIQUEZ, ) ) Appellants, ) ) No. SD38122 vs. ) ) FILED: April 29, 2024 MARIES COUNTY SHERIFF’S OFFICE, ) ) Respondent. )
APPEAL FROM THE CIRCUIT COURT OF MARIES COUNTY
Honorable John D. Beger, Judge
VACATED AND REMANDED WITH INSTRUCTIONS
ACLU of Missouri and Luz Maria Henriquez (collectively referred to as “ACLU”) appeal
the decision of the Circuit Court of Maries County granting a motion to dismiss filed on behalf
of the Defendant Maries County Sheriff’s Office (“Sheriff’s Office”). In two points on appeal,
ACLU contends that (1) the trial court erred in determining that Sheriff’s Office is not an entity
that can sue and be sued under the Missouri Sunshine law, and (2) the trial court abused its
discretion by denying ACLU leave to amend its petition to add the appropriate party defendant.
Finding merit in point two, we vacate and remand with directions and do not reach point one. Factual Background and Procedural History
On August 21, 2020, ACLU filed a petition naming “Maries County Sheriff’s Office” as
a party defendant. The petition was served on a Maries County deputy sheriff and asserted that
Sheriff’s Office violated Missouri’s Sunshine law under section 610.026 1 by failing to provide
requested copies of documents relating to certain social media communications and policies
enacted by Sheriff’s Office. The petition was later served on Chris Heitman, the Maries County
Sheriff (“Sheriff Heitman”), and an attorney for Sheriff’s Office made a limited entry of
appearance. In addition, ACLU took the deposition of Sheriff Heitman shortly after the petition
was served on him.
ACLU moved for summary judgment, but Sheriff’s Office filed a motion to dismiss the
petition alleging that the Sheriff’s Office was an entity that “cannot sue or be sued.” In response,
ACLU asserted that Sheriff’s Office was an entity that could sue and be sued under the Sunshine
law. ACLU further argued in the alternative that if Sheriff’s Office was not an appropriate party
to be sued, “the appropriate remedy is a simple substitution of the parties or an amendment of the
petition” and the trial court “may order that [the Sheriff’s name] be added pursuant to Rule 52.13
or by amendment of the petition.” The trial court ruled that Sheriff’s Office was not an entity
that could sue or be sued. In response to ACLU’s assertion that the trial court should grant leave
to amend its petition, the trial court stated the following:
[ACLU] also argues that, if the Court is inclined to grant [Sheriff’s Office’s] Motion to Dismiss it should allow the Sheriff’s name to [be] added per the last sentence of Rule 52.13(d). The Court does not view that as a viable option since original service herein was not upon the sheriff. The trial court granted the Motion to Dismiss without prejudice. ACLU appeals. 2
1 All statutory references are to RSMo 2016. All rule references are to Missouri Court Rules (2022). 2 In a motion taken with the case, Sheriff’s Office moved to dismiss this appeal by arguing the trial court’s judgment, as a dismissal without prejudice, was not final. Sheriff’s Office argues that as a general rule, “a dismissal
2 Standard of Review
“The circuit court’s decision whether to grant or deny leave to amend will not be
disturbed absent an obvious and palpable abuse of discretion.” Moore v. Armed Forces Bank,
N.A., 534 S.W.3d 323, 328 (Mo.App. 2017) (internal quotation marks omitted). “Judicial
discretion is abused when the court’s ruling is clearly against the logic of the circumstances
presented to the court and is so unreasonable and arbitrary that it shocks the sense of justice and
indicates a lack of careful, deliberate consideration.” Sheffield v. Matlock, 587 S.W.3d 723, 731
(Mo.App. 2019). “[O]utright refusal to grant the leave without any justifying reason appearing
for the denial is not an exercise of discretion; it is merely abuse of that discretion and
inconsistent with the spirit of the [Rule].” Asmus v. Cap. Region Fam. Prac., 115 S.W.3d 427,
437 (Mo.App. 2003) (internal quotation marks omitted).
Discussion
ACLU asserts in its second point, which is dispositive, the trial court abused its discretion
by denying ACLU leave to amend its petition to substitute the party defendant because the trial
court denied ACLU’s request without offering any explanation as to why leave to amend should
not be granted.
Leave to amend a petition “shall be freely given when justice so requires.” Rule
55.33(a). Similarly, “[o]n sustaining a motion to dismiss a claim, counterclaim or cross-claim
the court shall freely grant leave to amend and shall specify the time within which the
without prejudice is not a final judgment and, therefore, is not appealable.” Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997). It is well-established that “a party can appeal from a dismissal without prejudice if the dismissal has the practical effect of terminating the action.” Adem v. Des Peres Hospital, Inc., 515 S.W.3d 810, 814 (Mo.App. 2017) (internal quotation marks omitted). “If the plaintiff would be barred from refiling the suit due to the statute of limitations, then a dismissal without prejudice may be deemed final because it has the practical effect of terminating the litigation.” City of Kansas City v. Ross, 508 S.W.3d 189, 192 (Mo.App. 2017). Because ACLU is barred from refiling its petition by the Sunshine law statute of limitations under section 610.027.5, the trial court’s dismissal without prejudice has the practical effect of ending the litigation. Accordingly, the trial court’s judgment was final, and we deny Sheriff’s Office’s motion to dismiss this appeal.
3 amendment shall be made or amended pleading filed.” Rule 67.06. “Denial of leave to amend is
within the sound discretion of the trial court,” see Matlock, 587 S.W.3d at 731, and in
considering whether justice requires granting leave to amend, courts consider several factors
including “the reasons for the moving party’s failure to include the matter in the original
proceedings; whether there is any prejudice to the non-moving party; and whether there will be
hardship to the party requesting amendment if the request is denied.” Moore, 534 S.W.3d at
328. “A non-moving party is not prejudiced by a motion for leave to amend unless that party is
deprived of a legitimate claim or defense.” Germania St., LLC v. Jackson, 509 S.W.3d 123,
126 (Mo.App. 2016).
Because the statute of limitations for ACLU’s Sunshine law claim has run, amendment of
ACLU’s petition is only permitted when the amendment “relates back to the date of the original
pleading,” which occurs when “the claim or defense asserted in the amended pleading arose out
of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original
pleading.” Rule 55.33(c). Further:
An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and within the period provided by law for commencing the action against the party and serving notice of the action, the party to be brought in by amendment: (1) has received such notice of the institution of the action as will not prejudice the party in maintaining the party’s defense on the merits and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Id. The notice required under this Rule is “sufficient when the party actually sued and the party
whom plaintiff meant to sue had a sufficient identity of interest or were so closely connected that
notice to one would suffice to inform the other of a pending claim for relief.” Johnson v.
Delmar Gardens W., Inc., 335 S.W.3d 83, 89 (Mo.App. 2011) (internal quotation marks
omitted).
4 ACLU’s proposed amendment changing the party defendant relates back to the date of its
original petition. The proposed amendment changes only the name of the party defendant and
arises out of the same transaction or occurrence – ACLU’s Sunshine law claim. Sheriff Heitman
had notice because he has sufficient identity of interest and is closely connected to Sheriff’s
Office. The petition was originally served on a Maries County deputy sheriff. An attorney for
Sheriff’s Office made a limited entry of appearance, and Sheriff Heitman was served with
ACLU’s petition. Furthermore, Sheriff Heitman testified in a deposition taken by ACLU. Both
Sheriff Heitman and Sheriff’s Office not only had notice of ACLU’s petition, but actively
participated in the litigation and therefore knew or should have known that the action would have
been brought against them. Accordingly, neither Sheriff Heitman nor Sheriff’s Office would be
prejudiced by ACLU’s proposed amendment, as ACLU neither seeks to amend its claim nor add
any further claims, and both had notice and opportunity to defend from ACLU’s allegations.
ACLU would suffer great hardship if the request were denied as they are barred from refiling its
petition by the statute of limitations.3
The trial court denied ACLU’s request to add Sheriff Heitman’s name pursuant to Rule
52.13(d) because “original service herein was not on the Sheriff.” However, the trial court
provided no explanation for denying ACLU’s request to amend its petition under Rule 55.33(a).
The record indicates that the trial court did not consider any factors in denying ACLU’s request
to amend its petition. The trial court’s outright denial of leave to amend under Rule 55.33(a)
3 Sheriff’s Office asserts ACLU did not preserve this argument because ACLU “nowhere in the record sought relief for this cause from the trial court or provided it with citation to the authorities they now rely on.” However, as Sheriff’s Office acknowledges, preservation is sufficient when “the matter was previously presented to the trial court.” Rule 78.07(b). In its suggestions in opposition to Sheriff’s Office’s motion to dismiss, ACLU requested leave to amend its petition to change the name of the party defendant, thereby presenting the matter to the trial court and preserving the issue for appeal. Rule 78.07(b) does not require ACLU to specifically argue that it would suffer hardship from the statute of limitations if its request to amend its petition was denied, and the Rule does not require ACLU to list the specific authorities used to support this argument.
5 without any justifying reason therefore indicates a lack of careful consideration and an abuse of
discretion.
Point two is granted.
Decision
With regard to the trial court’s denial of leave to amend ACLU’s petition, we vacate the
trial court’s judgment and remand with instructions to grant ACLU’s motion for leave to amend
to name Sheriff Heitman as a party defendant in accordance with this opinion.
BECKY J.W. BORTHWICK, J. – OPINION AUTHOR
JEFFREY W. BATES, J. – CONCURS
DON E. BURRELL, J. – CONCURS