CORRECTED OPINION
MISSOURI COURT OF APPEALS WESTERN DISTRICT
PETER LOEW AND ) KATHY LOEW, ) WD85343 ) Appellants, ) OPINION FILED: April 4, 2023 v. ) ) HEARTLAND TROPHY ) PROPERTIES, INC., ) ) Respondent. )
Appeal from the Circuit Court of Putnam County, Missouri Honorable Steven Daniel Hudson, Judge
Before Division Four: Gary D. Witt, Chief Judge, Alok Ahuja, Judge and Janet Sutton, Judge
Peter and Kathy Loew (the Loews) appeal from the judgment of the Putnam County
Circuit Court (circuit court) that granted Heartland Trophy Properties, Inc.’s (Heartland) motion
to transfer venue, and thereby dismissed, without prejudice, an action involving the Loews’
petition seeking a declaratory judgment. The circuit court also denied the Loews’ request for
sanctions. We affirm in part, reverse in part, and remand for further proceedings consistent with
our ruling today.
Factual and Procedural Background
In 2019, the Loews, Missouri real estate agents, entered into identical real estate agent
and noncompete agreements with Heartland. On September 4, 2020, the Loews filed a petition in Putnam County seeking a declaratory judgment to void the noncompete agreements. On
October 12, 2020, Heartland filed an answer, affirmative defenses, counterclaims, petition for
preliminary and permanent injunctions, and a temporary restraining order. Heartland’s
counterclaims included, among others, claims for breach of contract, breach of fiduciary
responsibilities, breach of the duty of loyalty, misappropriation of trade secrets and confidential
business information, and interference with prospective business advantage.
Following briefings from the parties, on February 26, 2021, the circuit court indicated in
a docket entry that Heartland’s application for a temporary restraining order was denied, and the
court requested the Loews submit a proposed order. It does not appear, however, that the circuit
court entered an order on its decision regarding the temporary restraining order.
On April 13, 2021, Heartland filed a petition in Appanoose County, Iowa, for the same
relief it sought in its claims pending in Putnam County, Missouri, including, but not limited to,
its request for a temporary injunction. The petition did not include the fact that the Putnam
County, Missouri, action was pending. In early May 2021, in the Appanoose County, Iowa,
action, the Loews filed a motion to dismiss, or in the alternative, motion to stay the proceedings
until the Putnam County, Missouri, lawsuit was resolved. In late June 2021, the Iowa matter was
stayed pending resolution of the matter in Putnam County, Missouri. At some point the Iowa
court lifted the stay at Heartland’s request. However, in May 2022, the Iowa court vacated its
earlier order lifting the stay, and stated that it “rel[ied] on the representations made [by
Heartland] [and] understood the Missouri [l]awsuit had been fully resolved” and concluded that
the judgment entered in Putnam County, Missouri, was not final. 1
1 We cannot be certain of the current status of the Appanoose County, Iowa, case as we do not have a full record of the proceedings or the case filings. We only have certain pleadings and court orders in the record on appeal. 2 On September 30, 2021, approximately one year after being previously served with the
Loews’ petition in the Putnam County, Missouri, action, Heartland filed a motion titled “Motion
for Leave & Transfer of Venue.” This was the first time that Heartland lodged an objection to
venue in Putnam County, Missouri. In its motion, Heartland sought a change of venue to
Appanoose County, Iowa, under Rule 51.045, 2 arguing that venue was proper in Iowa, and that
“[g]ood cause exist[ed] for the amending of pleadings and the change of venue” because the
Loews “let their claims languish.” Heartland also argued that Appanoose County, Iowa, was the
proper convenient forum for the dispute under a forum non conveniens analysis. Putnam County,
Missouri, and Appanoose County, Iowa, adjoin one another and the courthouses are less than
twenty-five miles apart.
On October 20, 2021, the Loews filed their opposition to Heartland’s motion to transfer
venue that also included a request for sanctions. In mid-December 2021, the Loews filed a
supplemental response to Heartland’s motion to transfer venue in which they again combined
their request for sanctions.
On April 6, 2022, the circuit court granted Heartland’s motion to transfer venue. The
circuit court denied the Loews’ request for sanctions, finding their request insufficient under
Rule 55.03 because it did not adequately describe the alleged violations forming the basis for
sanctions and it was not filed as a separate motion. The circuit court, appearing to rely on both
Rule 51.045 and forum non conveniens, concluded that Appanoose County, Iowa, was the proper
venue for resolution of the case and that “‘[c]hanging venue to Iowa is convenient for both
parties and vests all questions of law and fact in the venue best positioned to apply the relevant
2 All rule references are to the Missouri Supreme Court Rules (2021). 3 procedural and substantive law pursuant to the contract which is the basis for th[e] action.’”
Specifically, the judgment included the following language:
The [c]ourt based upon the above hereby sustains and grants [Heartland’s] Motion for Leave and Transfer of Venue; the [c]ourt orders that the [Loews’] Petition filed herein is hereby dismissed without prejudice; The [c]ourt orders that the proceedings herein move forward in the proper venue of the Appanoose County, Iowa[,] District Court. The circuit court’s judgment did not specifically address Heartland’s counterclaims.
The Loews appeal.
Legal Analysis
After the Loews filed their notice of appeal and legal file, we requested both parties file
suggestions as to why we should not dismiss the appeal because the circuit court’s judgment may
not be final and appealable.
Heartland responded in a letter that we should dismiss the appeal because the judgment is
not a final judgment as it did not resolve the pending counterclaims and did not certify the case
for appeal. Heartland did not file a motion to dismiss the appeal. The Loews responded in a
letter and also addressed the issue in their first point relied on in their brief. The Loews contend
that the circuit court’s judgment constituted a final judgment because it addressed Heartland’s
counterclaims by transferring the entire case to another jurisdiction and the court’s dismissal had
the practical effect of terminating the litigation in the form cast or in their chosen forum. The
issue was taken with the case.
We agree with the Loews that the circuit court’s judgment constituted a final, appealable
judgment. It is clear from the language used by the circuit court that it was dismissing the entire
action because of the references in the judgment to “this case,” “this matter,” and “this action.”
Additionally, the circuit court ordered “that the proceedings herein move forward in the proper
venue of the Appanoose County, Iowa District Court.” (Emphasis added). The circuit found that 4 the “‘proper venue for the resolution of this case is Appanoose County, Iowa.’” (Emphasis
added). That paragraph goes on to note that “‘[t]his case’” also involves “‘rights that [Heartland]
may have regarding injunctive relief’”—a plain reference to one of Heartland’s counterclaims.
See Sextro v. Burkey, 950 S.W.2d 523, 524 (Mo. App. E.D. 1997) (stating that a trial court’s
order necessarily dismissed a defendant’s counterclaim based on the trial court’s usage of the
words “this cause” and common usage of the word “cause” to include the entire action, including
counterclaim).
“Dismissals without prejudice call into question whether there is a final, appealable
judgment.” Jeschke AG Serv., LLC v. Bell, 652 S.W.3d 305, 310 (Mo. App. W.D. 2022).
“However, an appeal from a dismissal without prejudice can be taken where the dismissal has the
practical effect of terminating the litigation in the form cast or in the plaintiff's chosen forum.”
Id. (citation omitted). And, as relevant to this case, “an order dismissing a plaintiff's cause of
action, on the basis of forum non conveniens is a final order subject to review by an appellate
court.” Taylor v. Farmers Ins. Co., Inc., 954 S.W.2d 496, 499 (Mo. App. S.D. 1997); Herchert
v. Marriott Corp., 867 S.W.2d 230 (Mo. App. E.D. 1993). Here, the circuit court based its
dismissal without prejudice, at least in part, on forum non conveniens, which had the effect of
terminating the case in the Loews’ chosen forum. Having determined that the circuit court’s
judgment is final and appealable, we now turn to the merits of the appeal.
On appeal, the Loews contend that the circuit court erred in granting Heartland’s motion
to transfer venue to Appanoose County, Iowa, on the basis of improper venue and in dismissing
their petition without prejudice because Heartland’s motion to transfer venue was untimely and
that Heartland waived its improper venue claim. The circuit court’s judgment granting
Heartland’s motion to transfer venue and its dismissal of the Loews’ petition without prejudice
5 was based on Rule 51.045 and the doctrine of forum non conveniens, neither of which provide a
legal basis for transfer of venue in this case and at this point in time.
Circuit Court’s Grant of Heartland’s Motion to Transfer Venue Based on Rule 51.045 and Dismissal without Prejudice of the Action Heartland’s motion to transfer venue was based on two different theories, first, Rule
51.045, which outlines the procedure for transfer within Missouri based on improper venue, and
second, the doctrine of forum non conveniens. In its motion, Heartland identified Iowa as the
proper “convenient” forum for the action and requested the court grant its motion to transfer
venue and to dismiss the Loews’ petition. Heartland requested the circuit court order the
proceeding to move forward in Appanoose County, Iowa, under Heartland’s petition which
contained the same claims that were pending in Putnam County, Missouri.
Heartland’s motion to transfer venue was untimely and did not allege good cause for the
late filing. Heartland was served with the Loews’ petition on September 14, 2020. Heartland
did not file its motion to transfer venue until September 30, 2021, over ten months late.
Rule 51.045(a) states that a motion to transfer, which alleges an alternative, proper county and
explains the basis for venue, must be filed by the party alleging improper venue within 60 days
of service. See State ex rel. Vacation Mgmt. Sols., LLC v. Moriarty, 610 S.W.3d 700, 702 (Mo.
banc 2020); State ex rel. Schwarz Pharma, Inc. v. Dowd, 432 S.W.3d 764, 768-69 (Mo. banc
2014). Rule 51.045(a)(2) states, “If a motion to transfer venue is not timely filed, the issue of
improper venue is waived.” By its late filing, Heartland waived its venue objection and the
circuit court had no authority to grant the motion to transfer venue.
Additionally, the circuit court lacked authority to grant Heartland’s motion to transfer
venue from Putnam County, Missouri, to Appanoose County, Iowa, under Rule 51.045.
Heartland could have challenged venue by filing a motion to dismiss under section 508.010.15
6 which provides: “[i]f the county where the plaintiff’s claim is filed is not a proper venue, that
plaintiff shall be transferred to a county where proper venue can be established. If no such
county exists in the state of Missouri, the claim shall be dismissed without prejudice.”
§ 508.010.15, RSMo (2019).
Heartland sought transfer of the case to its chosen forum, Appanoose County, Iowa,
which it claimed was proper and more convenient because it stated Heartland was an Iowa
corporation, with a business office in Iowa, the contract contained an Iowa choice of law
provision, and that the claims were at issue in existing Iowa proceedings. This is not how the
venue rules operate. While a plaintiff does not have an “unlimited right” to select the forum, “a
plaintiff’s freedom to select a forum is significant.” Barrett v. Mo. Pac. R.R. Co., 688 S.W.2d
397, 399 (Mo. App. E.D. 1985) (citation omitted). Here, venue was proper in Putnam County
under § 508.010.2(4), because the defendant, an Iowa corporation, was a nonresident of
Missouri. Heartland never claimed that venue was incorrect in Putnam County, Missouri.
Additionally, we note that the “existing Iowa proceedings” were initiated after the Loews filed
their petition in Putnam County, Missouri, and were filed after the circuit court denied
Heartland’s request for a temporary restraining order.
The circuit court had no legal authority to grant Heartland’s motion to transfer venue to
an out-of-state location based on an untimely filed motion under Rule 51.045.
Forum Non Conveniens
In Heartland’s untimely motion to transfer venue, Heartland identified Appanoose
County, Iowa, as the “proper convenient” forum for the dispute, citing the doctrine of forum non
conveniens. In its motion, Heartland contended that its original business office was located in
Centerville, Iowa, that it is an Iowa corporation, the action was based on an Iowa contract, and
7 that Appanoose County, Iowa, is directly adjacent to Putnam County, Missouri. Heartland then
concluded that the Iowa venue is
convenient to resolve questions of Iowa substantive and procedural law which are central to the [a]greement at issue in the matter as well as any rights Heartland may have regarding injunctive actions. The Appanoose County District Court has jurisdiction over the Loews since they entered into the [a]greement with the Iowa corporation from that county. In its judgment, the circuit court concluded that the doctrine of forum non conveniens and
consideration of the necessary factors supported the conclusion that “‘proper venue for the
resolution of this case is in Appanoose County, Iowa,’” and that it would be “totally impractical”
for a Missouri court to hear the matter and apply Iowa law. The court stated that Heartland’s
original business office is in Appanoose County, Iowa, that Heartland is an Iowa corporation,
and that Appanoose County, Iowa, is “convenient to resolve questions of Iowa substantive and
procedural law” and that the Loews would not be prejudiced by this “change in venue.” The
court concluded that “‘[c]hanging venue to Iowa’” was convenient for both parties.
The circuit court based, at least in part, its decision to grant Heartland’s motion to
transfer venue and its dismissal without prejudice on the doctrine of forum non conveniens. The
circuit court’s judgment included the following language: “The doctrine of forum non conveniens
supports that proposition that a Missouri [c]ourt is permitted to allow transfer of venue to other
states and in consideration of the forum non conveniens factors” set forth in State ex rel.
Chicago, Rock Island & Pac. R.R. Co. v. Riederer, 454 S.W.2d 36 (Mo. banc 1970) (Emphasis
added). The circuit court incorrectly applied the doctrine of forum non conveniens to support its
grant of Heartland’s motion to transfer venue and the resulting dismissal of the action.
The doctrine of forum non conveniens permits a trial court to dismiss an action if the
forum is seriously inconvenient and there is a more appropriate forum available to the plaintiff,
even if venue and jurisdiction are otherwise proper. Adkins v. Hontz, 280 S.W.3d 672, 676 (Mo. 8 App. W.D. 2009); Campbell v. Francis, 258 S.W.3d 94, 97 (Mo. App. W.D. 2008). “The
doctrine is to be applied with caution and only upon a ‘clear showing of inconvenience and when
the ends of justice require it.’” Campbell, 258 S.W.3d at 97 (quoting State ex rel. Ford Motor
Co. v. Westbrooke, 12 S.W.3d 386, 394 (Mo. App. S.D. 2000)). “[A] plaintiff’s choice of forum
is not to be disturbed except for ‘weighty reasons’ and the case should be dismissed only if the
‘balance is strongly in favor’ of the defendant.” State ex rel. Wyeth v. Grady, 262 S.W.3d 216,
220 (Mo. banc 2008) (quoting Anglim v. Mo. Pac. R. Co., 832 S.W.2d 298, 302 (Mo. banc
1992)).
A trial court should weigh six important, but non-exclusive, factors in determining
whether a suit should be dismissed on the grounds of an inconvenient forum. Riederer, 454
S.W.2d at 39; Wyeth, 262 S.W.3d at 220. They are: (1) the place where the cause of action
accrued; (2) the location of witnesses; (3) the residence of the parties; (4) any nexus with the
place of suit; (5) the public factor of the convenience to and burden on the court; and (6) the
availability to the plaintiff of another court with jurisdiction over the cause of action that affords
the plaintiff a forum for his or her remedy. Riederer, 454 S.W.2d at 39. “The defendant has the
burden of establishing all factors supporting a claim that a Missouri court is an inconvenient
forum.” Wyeth, 262 S.W.3d at 228 (Clark, J., concurring) (citation omitted).
“In deciding whether to dismiss [for forum non conveniens], a trial court necessarily must
determine facts and, in doing so, weighs evidence and assesses the credibility of witnesses as to
the reasons given for selecting or opposing a particular forum.” Anglim, 832 S.W.2d at 303. To
the extent that the circuit court dismissed the Loews’ petition based on forum non conveniens,
the circuit court’s conclusions on the factors were framed by Heartland’s assertions only and not
supported by any evidence.
9 In its motion, Heartland did not allege any substantial inconvenience, where witnesses
were located, or whether any witnesses would be inconvenienced by allowing the case to
proceed in Putnam County, Missouri. Heartland did not address other Riederer factors such as
any “nexus” with the place of the suit, or the residence of the parties, specifically, the Loews.
Heartland admitted in its motion that the performance of the agreement took place in both Iowa
and Missouri and that there was no venue provision established in the contract between the
parties.
Similarly, the circuit court in its judgment concluded, without any evidence in support,
that Appanoose County, Iowa, is “convenient for both parties” but the circuit court did not make
any findings about the inconvenience of the Loews’ chosen forum of Putnam County, Missouri.
Additionally, the circuit court stated it would be “impractical” for a Missouri court to hear the
matter and apply Iowa law. “Missouri courts are capable of applying the laws of other states
without creating an undue burden on the court system.” Taylor, 954 S.W.2d at 502. “The mere
fact that the trial court must apply a foreign jurisdiction’s law to an action does not burden the
court enough to support a dismissal.” Campbell, 258 S.W.3d at 99.
Heartland failed to establish that the Riederer factors weighed heavily in its favor, and
the circuit erred in dismissing the action on the basis of Iowa being a more “convenient” venue
for the parties.
In addition to the Riederer factors, we also consider “whether trial in Missouri would be
oppressive to the defendants” or would impose an “undue burden on Missouri courts.” Wyeth,
262 S.W.3d at 220-21; Anglim, 832 S.W.2d at 303. “[T]here are two primary considerations in
the forum non conveniens analysis. In determining whether the forum is inconvenient, courts
shall consider both the private interests of the litigants and the public interest factors.” Wyeth,
10 262 S.W.3d at 220. Heartland failed to allege or demonstrate that permitting the case to proceed
in Putnam County, Missouri, would be oppressive or pose an undue burden on Missouri courts.
See Anglim, 832 S.W.2d at 304 (stating that a party may submit statistical data to support a claim
that a trial court’s caseload is so congested that the case cannot be expeditiously litigated in the
jurisdiction where the case was originally filed).
Further, Heartland has not shown that the Loews’ filing and maintenance of the suit in
Missouri was for the purpose of vexing, oppressing, or harassing Heartland, which the doctrine
of forum non conveniens was intended to prevent. See Anglim, 832 S.W.2d at 302.
The forum non conveniens factors do not weigh heavily in favor of dismissal and
Heartland failed to establish that permitting the case to be tried in Putnam County, Missouri,
would be oppressive to Heartland or would impose an undue burden on a Missouri court. The
circuit court erred in dismissing the action on the basis of forum non conveniens.
Point II is granted.
Loews’ Request for Sanctions
In their last point on appeal, the Loews contend that the circuit court erred in failing to
sanction Heartland because Heartland unnecessarily created duplicative lawsuits in Iowa and
Missouri and that Heartland filed such separate suits for the unethical purpose of raising
litigation costs.
Rule 55.03(d)(1)(A) provides, in part: “A motion for sanctions under this Rule 55.03
shall be made separately from other motions or requests and shall describe the specific conduct
alleged to violate Rule 55.03(c).” Here, the Loews combined their objection to Heartland’s
motion to transfer venue with their request for the circuit court to impose sanctions on Heartland.
11 The Loews’ request for sanctions was not filed separately from any other motion or
request. The Loews’ request for sanctions “clearly contravenes the specific requirements and
procedure of Rule 55.03, that the motion seeking sanctions be made separately from any other
motion or request. The violation of the explicit procedural requirements of this rule denies the
trial court of any authority to impose sanctions.” Williams v. Frymire, 186 S.W.3d 912, 923
(Mo. App. S.D. 2006). See also Robin Farms, Inc. v. Bartholome, 989 S.W.2d 238, 250 (Mo.
App. W.D. 1999). Here, the circuit court did not have any authority to impose sanctions because
of the Loews’ violation of the explicit procedural requirements of Rule 55.03, and therefore it
did not err in failing to impose sanctions. Point III is denied.
Conclusion
We affirm in part, reverse in part, and remand to the circuit court for further proceedings
consistent with our ruling today.
Janet Sutton, Judge
Gary D. Witt, Chief Judge, Alok Ahuja, Judge concur.