In the Missouri Court of Appeals Western District ERIC S. CLARK, ) ) Apellant, ) WD85589 ) v. ) OPINION FILED: ) February 7, 2023 BRIDGETTE SHAFFER, ET AL., ) ) Respondents. )
Appeal from the Circuit Court of Jackson County, Missouri The Honorable Jennifer Marie Phillips, Judge
Before Division Four: Gary D. Witt, Chief Judge, Presiding, Mark D. Pfeiffer, Judge and Thomas N. Chapman, Judge
Appellant Eric Clark ("Clark") appeals the judgment of the Circuit Court of Jackson
County, Missouri ("trial court"), granting the motion to dismiss filed by Respondents
Bridgette Shaffer, in her official capacity as Director of the Jackson County Health
Department, and Darryl Forte, in his official capacity as the Jackson County Sheriff
(collectively, "Shaffer"). Clark raises three points on appeal: (1) the trial court erred in
denying leave to amend the petition in violation of Rule 55.33(a);1 (2) the trial court erred
1 All rule references are to Missouri Court Rules (2022), unless otherwise indicated. in dismissing the case because it is improper to dismiss with prejudice without reaching
the merits, and it is improper to dismiss because the dismissal was based on a document
that was not made part of the state court file under Rule 55.34(b); and (3) the trial court
erred in denying the post-judgment motion for leave to amend the petition in violation of
Rule 67.06. Finding no error, we affirm.
Factual and Procedural Background
Clark filed a petition in the circuit court of Jackson County on August 12, 2020,
("Original Petition") challenging two Missouri statutes, section 192.3002 and section
192.320, and an Executive Order ("Health Order") issued by the Jackson County Health
Department pursuant to those statutes that required individuals to wear masks in certain
public places in response to the COVID-19 pandemic. In the Original Petition, Clark
alleged that the relevant statutes and Health Order: violated his rights to freedom of speech
and peaceable assembly, for which Shaffer was liable under 42 U.S.C. section 1983;
violated his rights to freedom of speech and peaceable assembly under article IV, sections
8 and 9 of the Missouri Constitution; violated a liberty interest to enjoy a republican form
of government under article IV of the United States Constitution; violated his fundamental
right to make his own health decisions under the Ninth Amendment to the United States
Constitution; violated a liberty interest in refusing medical treatment under the Fourteenth
Amendment to the United States Constitution; and violated a liberty interest concerning
his right to marry under the Fourteenth Amendment to the United States Constitution.
2 All statutory references are to Revised Statutes of Missouri (2016), as currently updated by supplement, unless otherwise indicated.
2 Clark's prayer for relief requested that the trial court declare section 192.300 to be
unconstitutional, enter an injunction prohibiting Shaffer from enforcing the Health Order,
and award attorney fees. In the Original Petition, Clark stated, "This case presents a matter
of public importance and is capable of repetition while escaping judicial review because
the unconstitutional power in this matter may be exercised for only days, or even hours or
minutes, at a given time and then halted."
Shaffer filed a notice of removal because the Original Petition alleged violations of
federal law, and the case was removed to the United States District Court for the Western
District of Missouri. Clark filed a First Amended Petition in federal court, which amended
the cause of action to only allege violations of freedom of speech and peaceable assembly
under the United States Constitution and Missouri Constitution, and violations of equal
protection under the United States Constitution. Clark's prayer for relief was identical to
the Original Petition. While the case was pending in federal court, Jackson County
rescinded the Health Order. Shaffer filed a motion to dismiss, which was granted by Judge
Greg Kays of the federal district court on August 18, 2021, because the termination of the
Health Order rendered the case moot. Clark appealed the district court's judgment to the
United States Court of Appeals for the Eighth Circuit. The Eighth Circuit affirmed the
dismissal based on mootness following the Health Order's termination, thus finding the
federal court lacked subject matter jurisdiction. Clark v. Forte, No. 21-3208, 2022 WL
620553, *1 (8th Cir. 2022). The Eighth Circuit ordered the district court to remand the
case to state court finding that when a federal court's subject-matter jurisdiction is lacking
3 in a case that has been removed from state court, the proper remedy is to remand the case
back to the state court where it originated. Id.
After the case was remanded to the state trial court, Clark filed a motion for leave
to file an amended petition. In the proposed amended petition, Clark only alleged that the
relevant statutes and Health Order violated his right to freedom of speech under the
Missouri Constitution. In Clark's proposed prayer for relief, he requested that the trial court
declare section 192.300 unconstitutional, and he requested nominal damages for violation
of his freedom of speech under the Missouri Constitution. The trial court denied Clark's
motion for leave to file an amended petition. Shaffer filed a motion to dismiss because the
case was moot and because the First Amended Petition failed to state a claim. The trial
court granted Shaffer's motion to dismiss and, in its order, stated, "[B]ased upon the
pleadings and arguments, judgment is rendered, and the same is entered in favor of
Defendant Shaffer and Defendant Forte, and against Plaintiff. Plaintiff's First Amended
Petition is dismissed with prejudice."
Following the entry of judgment, Clark filed a motion to vacate or reopen and amend
the judgment, which the trial court denied. Clark then filed a motion for leave to amend
the petition, pursuant to Rule 67.06. On August 3, 2022, the trial court denied Clark's post-
judgment motion for leave to amend the petition. This appeal follows. Clark's first
appellate brief was struck for multiple violations of Rule 84.04. Clark filed an amended
brief.
4 Points I & III
Because Clark's first and third points on appeal relate to his motions for leave to
amend the petition, we address them together. See Dibrill v. Normandy Associates, Inc.,
383 S.W.3d 77, 92 (Mo. App. E.D. 2012). Clark argues that the trial court erred in denying
his motion for leave to amend the petition, pursuant to Rule 55.33(a), and the trial court
erred in denying his post-judgment motion for leave to amend the petition, pursuant to Rule
67.06. "As a matter of right, a party may amend its pleading once before a responsive
pleading is served, or if no responsive pleading is permitted and the action has not been
placed on the trial calendar, the pleading may be amended at any time within thirty days
after it has been served." Saint Luke's Hosp. of Kan. City v. Benefit Mgmt. Consultants,
Inc., 626 S.W.3d 731, 756 (Mo. App. W.D. 2021). "Otherwise, the pleading may be
amended only by leave of court or by written consent of the adverse party; and leave shall
be freely given when justice so requires." Rule 55.33(a). "Rule 67.06 provides that '[o]n
sustaining a motion to dismiss a claim . . . the court shall freely grant leave to amend."
Dibrill, 383 S.W.3d at 92. "While both rules stress liberality in permitting amendments to
pleadings, they do not confer an absolute right to file even a first amended petition." Id.
"It is within the trial court's broad discretion to allow or disallow amendments to
pleadings." Saint Luke's Hosp. of Kan. City, 626 S.W.3d at 756 (quoting Newell Mach.
Co., Inc. v. Pro Circuit, Inc., 596 S.W.3d 635, 646 (Mo. App. W.D. 2020)). We will not
disturb the trial court's decision "unless the trial court obviously and palpably abused its
discretion." Smith v. City of St. Louis, 409 S.W.3d 404, 423 (Mo. App. E.D. 2013). "A
5 trial court abuses its discretion when the ruling is clearly against the logic of the
circumstances and is so unreasonable and arbitrary that the ruling shocks the sense of
justice and indicates a lack of careful, deliberate consideration." Saint Luke's Hosp. of Kan.
City, 626 S.W.3d at 756 (internal quotations omitted).
On appeal from a denial of a motion for leave to amend under Rules 55.33(a) and
67.06, appellate courts consider: (1) the hardship to the moving party that a denial would
cause; (2) the reasons for the moving party's failure to include the matter in the original
pleadings; (3) the timeliness of the application for leave to amend; and (4) the hardship or
injustice that granting leave to amend would cause to the non-moving party. Saint Luke's
Hosp. of Kan. City, 626 S.W.3d at 756. "The purpose of the amendment rule is 'to enable
a party to present evidence that was overlooked or unknown at the time that the original
pleading was filed.'" Id. at 757 (quoting Eckel v. Eckel, 540 S.W.3d 576, 488 (Mo. App.
W.D. 2018)). "There is no abuse of discretion in denying the amended pleadings of parties
who fail to show the pleadings include any facts that were unknown when the original
pleading was filed." Id.; see also Dibrill, 383 S.W.3d at 92. "Our liberal amendment rules
are not meant to be employed as a stratagem of litigation . . . after previous contentions
failed." Moore v. Armed Forces Bank, N.A., 534 S.W.3d 323, 328 (Mo. App. W.D. 2017).
Here, the trial court did not abuse its discretion in denying Clark's motion for leave
to amend the petition over two years into the litigation and following a transfer to federal
court, appeal to the Eighth Circuit, and remand to the state court. Clark's proposed
amended petitions added a request for nominal damages, which, according to Clark, was
included to circumvent the mootness issue, pursuant to Uzuegbunam v. Preczewski, 141
6 S.Ct. 792 (2021). In Uzuegbunam, the United States Supreme Court held that a prayer for
nominal damages alone suffices to meet the redressability prong of Article III's standing
requirements when the violation of a legal right is alleged. Id. at 802. Clark's Original
Petition and First Amended Petition lacked a request for nominal damages, and the Eighth
Circuit affirmed the dismissal of the case in federal court after the Health Order was
terminated by Jackson County because "Clark is no longer subject to the challenged
requirements, and there is no reasonable expectation that he will be subject to the same
requirements again." Clark v. Forte, No. 21-3208, 2022 WL 620553, *1 (8th Cir. 2022).
Clark argues that his previous petitions did not include a request for nominal
damages because he could not have known that the Health Order would be rescinded.
Therefore, according to Clark, the prospect of the case becoming moot was unknown to
him at the time he first filed the Original Petition. We disagree. Clark knew that the Health
Order could be terminated at any time. Both the Original Petition and the First Amended
Petition state, "This case presents a matter of public importance and is capable of repetition
while escaping judicial review because the unconstitutional power in this matter may be
exercised for only days, or even hours or minutes, at a given time and then halted."
(Emphasis added). Moreover, it was reasonable and foreseeable, given the emergency
nature of the Health Order in response to the COVID-19 pandemic, that Jackson County
would amend or terminate its health orders over the course of the pandemic. Clark's
proposed amended petition does not allege any facts that were unknown at the time of the
original pleading, and his proposed petition adding a request for nominal damages is
merely a stratagem for litigation. There is no reason why Clark could not have included a
7 request for nominal damages in the Original Petition or First Amended Petition. This factor
alone suffices to affirm the judgment of the trial court denying Clark's motions for leave to
amend as lacking an abuse of discretion. See Moore, 534 S.W.3d at 329 (affirming the
trial court's judgment denying motion for leave to amend solely because plaintiff did not
present facts or circumstances that could not have been raised earlier). Accordingly,
finding no obvious or palpable abuse of discretion, the trial court did not err in denying
Clark's motions for leave to file an amended petition.
Points I and III are denied.
Point II: Motion to Dismiss
Clark argues the trial court erred in granting Shaffer's motion to dismiss because it
is improper to dismiss with prejudice without reaching the merits, and it is improper to
dismiss based on a document that was not made part of the state court file under Rule
55.34(b). "A judgment sustaining a motion to dismiss for failure to state a claim upon
which relief can be granted is reviewed de novo." Clay Cty. Comm'n v. Galloway, 615
S.W.3d 856, 859 (Mo. App. W.D. 2020). However, we review a trial court's dismissal of
a petition with prejudice for an abuse of discretion. Williams v. City of Kan. City, 841
S.W.2d 193, 198 (Mo. App. W.D. 1992). A trial court abuses its discretion "when the trial
court's ruling is clearly against the logic of the circumstances then before the court and is
so arbitrary and unreasonable as to show a lack of careful consideration and shock the sense
of justice." Smith v. Stewart, 644 S.W.3d 5, 13 (Mo. App. E.D. 2022). "In reviewing a
dismissal for failure to state a claim for relief, the appeals court should affirm the lower
8 court if the dismissal is supported by any ground, whether or not the trial court relied on
that ground." Clay Cty. Comm'n, 615 S.W.3d at 859.
Clark's second point contains more than one distinct claim of error in violation of
Rule 84.04, in that he alleges multiple claims of trial court error regarding the dismissal of
his claim in a single point relied on. Rule 84.04(d) requires separate points to challenge
separate rulings or actions. Lexow v. Boeing Co., 643 S.W.3d 501, 505-06 (Mo. banc
2022). "Consolidating multiple independent claims into a point is not permitted." Id.
(internal quotations omitted). "Multifarious points preserve nothing for review."
Guglielmino v. Jackson Cty., 609 S.W.3d 852, 856 (Mo. App. W.D. 2020). Although Clark
appears pro se, he "is subject to the same procedural rules as parties represented by counsel,
including the rules specifying the required contents of appellate briefs." Hoover v. Hoover,
581 S.W.3d 638, 640 (Mo. App. W.D. 2019). Here, Clark's first appellate brief was
stricken for multiple violations of Rule 84.04. Dismissal of an appellant's brief is
particularly appropriate where, as is the case here, "appellant makes no effort to correct the
deficient points in his amended brief, even after being put on notice that they were
inadequate." Brown v. Brown, 645 S.W.3d 75, 81 (Mo. App. W.D. 2022). "However,
because we prefer to decide cases on the merits, we elect ex gratia to address the distinct
claims raised in the point." Conway v. Caldwell, 645 S.W.3d 550, 557 (Mo. App. W.D.
2022).
Clark argues the trial court erred in dismissing the First Amended Petition because
the First Amended Petition was not included in the state court file on remand. Rule
55.34(b) provides:
9 Within thirty days after the date of the order of remand, the plaintiff shall file a list of all documents filed in the federal court that are to be made a part of the state court file and shall provide a copy of each such document to the court. Within forty days after the date of the order of remand, any other party shall file a list of any other documents filed in the federal court that are to be made a part of the state court file and shall provide a copy of each such document to the court.
Clark argues that because neither he nor Shaffer filed a list of all documents that
included the First Amended Petition in the state court following remand pursuant to Rule
55.34(b), the First Amended Petition was never part of the state court file, and the trial
court could not have relied on it to grant Shaffer's motion to dismiss. We disagree. "The
state court receives the case on remand from federal court removal in the posture it is when
remanded." Craig v. Mo. Dep't of Health, 80 S.W.3d 457, 460 (Mo. banc 2002) (quoting
Williams v. St. Joe Minerals Corp., 639 S.W.2d 192, 195 (Mo. App. 1982)). Here, "[s]ince
the case, when remanded, was governed by the [First Amended Petition], that complaint
was properly before the state trial court." Id. Clark argues that the trial court and now this
Court should ignore the First Amended Petition that he himself filed in federal court
because he failed to comply with Rule 55.34(b) and make that petition a part of the state
court record following remand. It is clear that the parties understood the First Amended
Petition to be the operative petition and that the trial court considered the First Amended
Petition when it granted Shaffer's motion to dismiss.
Clark argues that this Court's ruling in Mosby v. West-Anderson, 363 S.W.3d 397
(Mo. App. W.D. 2012) supports the notion that documents from federal court do not
become part of the state court file if the parties do not comply with Rule 55.34(b). Mosby's
holding is not as broad as Clark argues. In Mosby, we held that a default judgment in state
10 court could not be entered based on the failure to file a responsive pleading to a federal
complaint, where the federal complaint did not become part of the state court file. Id. at
400-401. Subsequent Missouri cases applying Mosby have been limited to similar
situations involving default judgments. See, e.g., Williams v. Zellers, 611 S.W.3d 357, 363
(Mo. App. E.D. 2020). Conversely, where the parties understand the operative pleading,
as is the case here because Clark filed the First Amended Petition himself, our Supreme
Court has held that "[f]ailure to refile a pleading after remand is not fatal to a state court
ruling on the pleading." Craig, 80 S.W.3d at 460. Accordingly, Clark's argument that the
trial court could not consider the First Amended Petition fails.
Clark's next argument in his second point relied on states that the trial court erred in
dismissing the case with prejudice because it is improper to dismiss with prejudice without
adjudicating the merits of the claim. "If a court disposes of a case on the grounds of
standing, ripeness, or mootness, it cannot reach the merits." Mo. State Conference of Nat'l
Ass'n for the Advancement of Colored People v. State, 633 S.W.3d 843, 848 (Mo. App.
W.D. 2021). "If a trial court dismisses a petition due to lack of standing, the dismissal
should be 'without prejudice.'" Id. However, "[a] dismissal with prejudice operates as an
adjudication upon the merits." Id. "When a trial court concludes that pleadings do not
state a cause of action, and when adequate opportunity to amend has been provided, it is
not [clear] error for the trial court to dismiss with prejudice." Williams, 841 S.W.2d at 198.
"[W]e are entitled to affirm the judgment of the trial court on any ground supported by the
record." Public Commc'ns Servs., Inc. v. Simmons, 409 S.W.3d 538, 552 (Mo. App. W.D.
2013) (internal quotation omitted).
11 Here, Shaffer's motion to dismiss asserted two grounds for dismissal: mootness and
failure to state claim. The trial court's judgment did not specify upon which ground it
dismissed the case; however the judgment states that the First Amended Petition was
dismissed "with prejudice." Because "we presume the trial court knows and applies the
law[,]" Bramer v. Abston, 553 S.W.3d 872, 879 (Mo. App. S.D. 2018), we presume that
the trial court dismissed the First Amended Petition because it failed to state a claim,
because a finding of mootness alone would have resulted in a dismissal "without
prejudice." To be sure, the trial court's judgment stated that the dismissal was based "upon
the pleadings and arguments[,]" which included arguments regarding both mootness and
the failure to state a claim. Clark had previously amended his petition, had litigated that
petition through multiple courts over a period of over two years, and had ample opportunity
to present his argument to the trial court; therefore, it was not an abuse of discretion for the
trial court to dismiss the First Amended Petition with prejudice for failure to state a claim.
Compare Smith, 644 S.W.3d at 13 (reversing dismissal with prejudice because, under the
circumstances, plaintiff had only filed their original petition, plaintiff's attorney had just
withdrawn, and defendant's motion did not request a dismissal with prejudice, among other
factors considered by the court).
Clark presents numerous additional arguments within his appellate brief challenging
the merits of the trial court's judgment dismissing the action with prejudice. However,
none of these arguments was properly raised in a point relied on in compliance with Rule
84.04. The portion of the multifarious point relied on addressing this simply states, "The
trial court erred by improper dismissing [sic] the case because it is improper to dismiss
12 with prejudice without reaching the merits[.]" To the extent Clark wishes to argue specific
errors of the trial court regarding the substance of his First Amended Petition, he has
waived those arguments by not presenting them in a proper point relied on. "Our courts
adhere[] to the well-entrenched doctrine that the questions for decision on appeal are those
stated in the points relied on, and a question not there presented will be considered
abandoned." KDW Staffing, LLC v. Grove Construction, LLC, 584 S.W.3d 833, 837 (Mo.
App. W.D. 2019) (internal quotations and alterations omitted); Rule 84.04(d)(1).
Therefore, based on Clark's brief, we cannot and will not speculate or attempt to analyze
each possible ground that the trial court may have possibly considered in dismissing Clark's
First Amended Petition with prejudice.
Point denied.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
__________________________________ Gary D. Witt, Judge
All concur